                       / 3 IHtH
ORIGINA                                         Oral argument requested


                         PD-1314-14



         In The Texas Court of Criminal Appeals


         Robert Tracy Warterfield                            •iciiv/feD M
                                                                    I APPEALS
                     appellant

                          vs.
                                                          FEB 18 2015

              The State of Texas                          *!Acosaa,G3??r
                      appellee
                                                                FILED IN
                                                      -COURT OF CRIMINAL APPEALS
                                                              FEB L0 2jj5
        FROM THE FIFTH COURT OF APPEALS
            CAUSE NO. 05-13-00017-CR
                                                           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 of Criminal Appeals;


      Comes now ROBERT TRACY WARTERFIELD, petitioner in the above -

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

of the Texas Rules of Procedure, and also requests that the Court resubmit this

cause for further consideration of its opinion of February 4,2015.
                                   Table of Contents


Question for Review                                                                    4


Index of Authorities               !                                                   5


Identity of Parties and Counsel                                                        6


Statement Regarding Oral Arguments                                                     8

Statement of the 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" of the 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 of Appeals 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 of Compliance                ,                                           22
                             Questions for Review


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

   plea agreement contract in compliance with the status of the laws in

   existence at formation?


   b) Is retroactive application of subsequent legislation permissible to impair

   obligations of the 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 of Appeals 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 of Appeals, whose errors go to the heart of the criminal justice

system, undermines the rule of law. 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 of Forensic 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 of indecency 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 assessed punishment at 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 of Appeals 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 of the 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 of its

     making, regardless of whether 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" of the 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 of Appeals 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 of the Court of Appeals 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 of the 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 obligation protected 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 but intended by

    the parties in a contract are thus 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 of reference

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 intention oftheparties 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

of my 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 of the 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 adhere to the terms and conditions of its

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 of law are not implied like laws and

                                   14
constitutions. "A general rule of law 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 of my 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 of this

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 implied provisions of the agreement conveying

the parties intentions and the 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 of the 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 of Jhe agreement,vthat being that the 70th

Legislature's promulgation of the statute of limitations 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 of Appeals 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 of the imagination can be defined as being "knowingly", and

though statute of limitations 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

of limitation 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 of the contract's consideration, part of the

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 of the defendant, and the State's conduct is

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

statute of limitation at the time of formation. The trial was void ab initio or


                                  17
alternately was conducted in ways that constitute a breach of the 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 of the contract clause, I find

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

impression?

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

The Court of Appeals 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.

If Justice Michael Keasler was the judge of the 292nd District court at the time

the plea agreement was accepted, the court should pass on my motion and

petition after his recusal. 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 if the above is so, I ask the

Court to consider this a Texas Rules of Appellate 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 of Appeals decision and order that either

the case be dismissed with prejudice and I be released if found that prosecution

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

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

plea agreement.




                                         20
                Respectfully Submitted,




 -1\o$mI( ^wcAr \))l
       Robert Tracy Warterfield - Pro Se
            Carolyn Warterfield - P.O.A.




                       T.D.C.J. #1829999
                           Clements Unit
                          9601 Spur 591
                  Amarillo, Texas 79107




21
                               Certificate of Service


I, the undersigned, hereby certify that a true and correct copy of the 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 of Compliance


Pursuant of TEX. R. APP. Pi 9.4(i)(3), undersigned counsel certifies that this brief
complies with:
      1. The type - volume limitation of TEX 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 of Texas

  County Of

                                    Power of Attorney                     ' /

        Know AllMen Bythese 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 do andperform allandevery act^nd thing whatsoever requisite and
  necessary to bedone inthe premises as fully, to allintents and purposes, aslmight or
  could do if personally present, with full 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: A phutDQopy hereof shalToe deemed an
 original for all purposes whatsoever.
       This power ofAttorney shall not be affected by my disability. Itis^n^ wish and
 mtentmatthe authority coffierred by meT^mmy attorney Qflough urn OfSaul r»wu of
 Attorney shfuldbe exercisable notwithstanding mydisability, myincapacity,' subsequent
 disability oriacapacity or uncertainty as to whether I am deador alive. All acts done by
 my attorney-in-fact or agentduring anypesod ofdisability or incompetence or
 uncertainty as to whetherI am dead or aliveshallhave the same effectandshall bind my
 heirs,legatees, devisees and personal representatives as ifI wereafive, competent and not
 disabled.                                                         ,.,
        InWitness Whereof, Ihereunto set my hand this / f day of-
               -t
                                                          LfeQ^L-.UAcU-,
                                                     Signature




                                                     Signature
                                                                 VSJL—
 State of Texas —


 County of




 foregoing is true
 Executed on
 Signature




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