/ 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/&0jn& '^/^ 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 —
foregoing is true Executed on Signature
*.•'--!£•-.•.