Cardarelli, Mark Massimo ( 2015 )

PD-1185-15
PD-1185-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 9/11/2015 12:23:31 PM
Accepted 9/14/2015 4:53:01 PM
PDR NO. PD-____________ ABEL ACOSTA
CLERK
COURT OF APPEALS NO.
02-14-00405-CR
IN THE TEXAS
COURT OF CRIMINAL APPEALS
AT AUSTIN, TEXAS
MARK MASSIMO CARDARELLI,
Petitioner
VS.
THE STATE OF TEXAS
Respondent
_________________________________________________________________
PETITION FOR DISCRETIONARY REVIEW
OF THE OPINION OF THE
SECOND COURT OF APPEALS OF
THE STATE OF TEXAS
_________________________________________________________________
PETITION FOR REVIEW
J. WARREN ST. JOHN
State Bar No. 18986300
2020 Burnett Plaza
801 Cherry Street, Unit No. 5
Fort Worth, Texas 76102-6810
Telephone: (817) 336-1436
September 14, 2015
Fax: (817) 336-1429
E-mail: jwlawyer@aol.com
ATTORNEY FOR PETITIONER
PETITIONER REQUESTS
ORAL ARGUMENT
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:
COMES NOW, MARK MASSIMO CARDARELLI, Petitioner, and files this his
Petition for Discretionary Review of the decision of the Second Court of Appeals of the
State of Texas.
LIST OF INTERESTED PARTIES
JUDGE: PETITIONER:
Honorable Craig Towson Mr. Mark Massimo Cardarelli
43rd Judicial District Court of c/o Mr. J. Warren St. John
Parker County 2020 Burnett Plaza
117 Fort Worth Highway 801 Cherry Street, Unit No. 5
Weatherford, Texas 76086 Fort Worth, Texas 76102
TRIAL COUNSEL:
Honorable Don Schnebly Mr. J. Warren St. John
Parker County District Attorney 2020 Burnett Plaza
117 Fort Worth Highway, 2nd Floor 801 Cherry Street, Unit No. 5
Weatherford, Texas 76086 Fort Worth, Texas 76102
Ms. Kathleen Catania
Parker County Assistant District Attorney
117 Fort Worth Highway, 2nd Floor
Weatherford, Texas 76086
APPELLATE COUNSEL:
Mr. Eddy Lewallen
Parker County Assistant District Attorney
117 Fort Worth Highway, 2nd Floor
Weatherford, Texas 76086
Mr. J. Warren St. John
2020 Burnett Plaza
801 Cherry Street, Unit No. 5
Fort Worth, Texas 76102
ii
STATEMENT REGARDING ORAL ARGUMENT
As noted on the front page of the Petition, Petitioner, MARK MASSIMO
CARDARELLI, requests that he be granted oral argument in this case when the case is
submitted for the Court’s consideration. Petitioner feels that oral argument would be
beneficial to the Court in understanding Petitioner's position.
/S/ J. Warren St. John
J. WARREN ST. JOHN
iii
TABLE OF CONTENTS
LIST OF INTERESTED PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
TABLE OF CASES AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
POINT FOR REVIEW.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
REASON FOR REVIEW NUMBER ONE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
THE COURT OF APPEALS HAS DECIDED AN IMPORTANT
QUESTION OF STATE LAW IN A WAY THAT CONFLICTS
WITH THE APPLICABLE DECISIONS OF THE COURT OF
CRIMINAL APPEALS.
THE COURT OF APPEALS HAS SO FAR DEPARTED
FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL
PROCEEDINGS AND HAS SO FAR SANCTIONED SUCH A
DEPARTURE BY A LOWER COURT, AS TO CALL FOR AN
EXERCISE OF THIS COURT’S POWER OF SUPERVISION.
CONCLUSION AND PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
iv
TABLE OF CASES AND AUTHORITIES
CASES:
Adams v. Carlson, C.A.Ill. 1973,
488 F.2d 619, on remand, 368 F. Supp. 1050. . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Adetomiwa v. Carlson, 421 S.W.3d 922, 928.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(Tex. App. Fort Worth 2014, no pet.)
Com v. Jackson, 1976, 355 N.E.2d 166,
369 Mass. 904. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Curry v. State, 910 S.W.2d, 940 (TEX.CRIM.APP. 1995). . . . . . . . . . . . . . . . . . . . . . . 7
Ex Parte Chavez, 213 S.W.3d, 320, 323 (TEX.CRIM.APP. 2006). . . . . . . . . . . . . . . . . 5
Hart v. Coiner, C.A.W.Va. 1973, 483 F.2d 136,
cert. denied, 94 S. Ct. 1454, 1577,
415 U.S. 938, 983, 39 L. Ed. 2d 495, 881,
reh. denied, 94 S. Ct. 1624, 416 U.S. 916
40 L. Ed. 2d 118. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Kasper v. Brittain, C.A. Tenn. 1957,
245 F.2d 92, cert. denied, 78 S. Ct. 54,
355 U.S. 834, 2 L. Ed. 2d 46, reh. denied,
78 S. Ct. 147, 355 U.S. 886, 2 L. Ed. 2d 92 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Lollis v. New York State Dept. of Social Services,
D.C.N.Y. 1970, 322 F. Supp. 473. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
People v. Broadie, 1975, 332 N.E.2d 338,
37 N.Y.2d 100, 371 N.Y.S.2d 471, cert. denied,
96 S. Ct. 372, 423 U.S. 950, 46 L. Ed. 2d 287 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Rogers v. U.S., C.A. Tex. 1962, 304 F.2d 520. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Swansey v. Elrod, D.C.Ill. 1975, 386 F. Supp. 1138.. . . . . . . . . . . . . . . . . . . . . . . . . . . 7
United States v. Tolias, C.A. Wash. 1977, 548 F.2d 277. . . . . . . . . . . . . . . . . . . . . . . . 7
v
CODES, RULES AND STATUTES
RULE 9.4 (i) TEX. R. APP. P. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Tex. Code Crim. Proc. Ann. art. 42.07 (West 2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Tex. Penal Code Ann. § 12.34. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Tex. R. App. P. 33.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
CONSTITUTIONAL PROVISIONS
U.S.C.A. Const. Amend 8.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,6,18
vi
STATEMENT OF THE CASE
The following summary is intended to provide a brief overview of the trial testimony.
Further discussion of the testimony will be reserved for the argument and authorities
section of Petitioner’s point of error.
The Petitioner was arrested for the offense of Possession of Child Pornography that
occurred on July 27, 2011. The Petitioner plead guilty before the Court for the offense
charged. The Petitioner requested a Presentence Investigation interview.
The Court conducted a sentencing hearing on September 18, 2014. The
Petitioner’s mother, as well as the Petitioner, and his counselor, Lawrin Dean, testified
before the Court. The Court sentenced the Petitioner to nine years in the Texas
Department of Criminal Justice, Institutional Division.
The Petitioner timely filed his notice of appeal with the Court of Appeals. The
Petitioner presented mitigating circumstances at his sentencing, which included testimony
from his mother, himself, and his counselor, Lawrin Dean.
1
PROCEDURAL HISTORY
Petitioner, MARK MASSIMO CARDARELLI, was indicted for Possession of Child
Pornography. (CR. Vol. I, p. 6) Petitioner plead guilty to Possession of Child Pornography.
(CR. Vol. I, pp. 1-3). The trial court sentenced the Petitioner to nine (9) years in the
Institutional Division of the Texas Department of Criminal Justice (CR. Vol. I, pp. 1-3).
The Second Court of Appeals affirmed the lower court’s decision on August 25,
2015. A Motion for Rehearing was filed on August 28, 2015 and was overruled on
September 9, 2015.
2
POINT FOR REVIEW
NUMBER ONE
THE TRIAL COURT ERRED BY NOT TAKING INTO CONSIDERATION THE
MITIGATING EVIDENCE PROVIDED BY PETITIONER. (RR VOL. I, PP. 1-69)
3
REASON FOR REVIEW NUMBER ONE: THE COURT OF APPEALS HAS DECIDED AN
IMPORTANT QUESTION OF STATE LAW IN A WAY THAT CONFLICTS WITH THE
APPLICABLE DECISIONS OF THIS HONORABLE COURT.
REASON FOR REVIEW NUMBER TWO: THE COURT OF APPEALS HAS SO FAR
DEPARTED FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL
PROCEEDINGS AND HAS SO FAR SANCTIONED SUCH A DEPARTURE BY A LOWER
COURT, AS TO CALL FOR AN EXERCISE OF THIS COURT’S POWER OF
SUPERVISION.
THE OPINION
Petitioner argued in his sole point that the trial court erred by not considering
mitigating evidence presented at the punishment trial and that the sentence was therefore
cruel and unusual. The State questioned whether the Petitioner properly preserved his
complaints. Petitioner did not object at trial to the punishment,1 and he filed a motion for
new trial that stated only, “The conviction and sentence are contrary to the law and
evidence.” As a general rule, the record must show that the complaint made on appeal
was timely made to the trial court “with sufficient specificity to make the trial court aware
of the complaint, unless the specific grounds were apparent from the context.” Tex. R.
App. P. 33.1. Nothing in Petitioner’s motion for new trial indicated what Petitioner’s
complaint was regarding the trial court’s consideration of the evidence. Petitioner therefore
The trial court did not ask Petitioner whether he had anything to say why the
1
sentences should not be pronounced against him. See Tex. Code Crim. Proc. Ann. art.
42.07 (West 2006)
4
did not preserve his complaint.
Even if he had, we note that Petitioner’s sentence falls within the statutory range for
his offenses of possession of child pornography. See Tex. Penal Code Ann. § 12.34. The
factfinder’s discretion to impose any punishment within a prescribed statutory range is
essentially “unfettered.” Ex Parte Chavez, 213 S.W.3d 320, 323 (Tex. Crim. App. 2006).
Subject only to an “exceedingly rare” and “somewhat amorphous” gross-disproportionality
review required by the Eighth Amendment, a punishment that falls within the legislatively-
prescribed range and that is based upon the factfinder’s informed normative judgment is
unassailable on appeal. Id. At 323-24; Adetomiwa v. State, 421 S.W.3d 922, 928 (Tex.
App. Fort Worth 2014, no pet.). The trial court heard testimony from Petitioner and two
other witnesses, and it then recessed to consider the evidence. When the trial judge
pronounced sentence, he said on the record, “[T ]he court has heard from a counselor in
this matter, has heard from your mother in this matter...However, when the court takes into
context what the allegations against you are, the court just cannot, in good conscience,
give a probationary period of time.” There was no evidence that the trial court did not
consider Petitioner’s mitigating evidence, nor does his sentence amount to cruel and
unusual punishment. We overrule Petitioner’s sole point.
Having overruled Petitioner’s sole point, we affirm the trial court’s judgment.
REASON TO GRANT REVIEW
The Petitioner did preserve his complaint by stating in his motion for new trial that
the sentence was contrary to the law. The court did not fairly assess the mitigating
circumstances for the Petitioner, not because it fairly reviewed the mitigating
5
circumstances, but because “they just don’t probate child pornography” cases which
appears to be predetermined by the State and the Court. Though the punishment falls
within the legislatively-prescribed range, the factfinder did not have an informed objective
assessment. The issue before this Court is an Eighth Amendment issue which can be
raised on it’s face.
LAW
The 8th Amendment to the United States Constitution prohibits cruel and unusual
punishment. U.S.C.A. Const. Amend. 8. Punishment which is disproportionate to offense
committed constitutes cruel and unusual punishment, whether imposed without or within
prison walls. Adams v. Carlson, C.A.Ill. 1973, 488 F.2d 619, on remand 368 F. Supp.
1050.
Initial element to be analyzed in determining whether punishment is constitutionally
disproportionate is the nature of the offense itself. Hart v. Coiner, C.A.W.Va. 1973, 483
F.2d 136, certiorari denied, 94 S. Ct. 1454, 1577, 415 U.S. 938, 983, 39 L. Ed. 2d 495, 881,
rehearing denied, 94 S. Ct. 1624, 416 U.S. 916, 40 L. Ed. 2d 118.
Punishment is not “cruel and unusual” within this amendment’s interdiction against
infliction of cruel and unusual punishments, unless it is so greatly disproportionate to
offense committed as to be completely arbitrary and shocking to sense of justice. Rogers
v. U.S., C.A.Tex. 1962, 304 F.2d 520.
The test to be applied in determining whether this amendment applies is whether
punishment is disproportionate to the offense and the severity or harshness of sanction as
measured by broad and idealistic concepts of dignity, civilized standards, humanity and
6
decency. Lollis v. New York State Dept. of Social Services, D.C.N.Y. 1970, 322 F. Supp.
473. See, also, United States v. Tolias, C.A. Wash. 1977, 548 F.2d 277, Kasper v. Brittain,
C.A. Tenn. 1957, 245 F.2d 92, certiorari denied, 78 S. Ct. 54, 355 U.S. 834, 2 L. Ed. 2d 46,
rehearing denied, 78 S. Ct. 147, 355 U.S. 886, 2 L. Ed. 2d 115, Swansey v. Elrod, D.C.Ill.
1975, 386 F. Supp. 1138.
In determining whether punishment is so disproportionate to offense as to constitute
cruel and unusual punishment, the court considers the nature of offense and offender in
light of degree of harm to society and penological purposes for enactment of the provision
for punishment. Com v. Jackson, 1976, 344 N.E.2d 166, 369 Mass. 904. See, also,
People v. Broadie, 1975, 332 N.E.2d 338, 37 N.Y.2d 100, 371 N.Y.S.2d 471, certiorari
denied, 96 S. Ct. 372, 423 U.S. 950, 46 L. Ed. 2d 287.
In Curry v. State, 910 S.W.2d 940 (TEX.CRIM.APP. 1995), that the trier of fact must
be allowed to consider mitigating evidence.
The Appellant presented mitigating evidence through his expert, Lawrin Dean as to
what could be appropriate for the Court’s consideration for the possibility of probation.
1 THE COURT: Go ahead and have a seat
2 first.
3 THE WITNESS: Okay. Thank you.
4 THE COURT: If you would raise your right
5 hand.
6 (Witness was sworn)
7 THE COURT: Thank you very much. You may
8 proceed.
7
9 MR. ST. JOHN: Thank you, Your Honor.
10 LAWRIN DEAN,
11 A witness called on behalf of the Defendant, having
12 been duly sworn, testified on her oath as follows:
13 DIRECT EXAMINATION
14 Q. (BY MR. ST. JOHN) State your name for the
15 record.
16 A. My name is Lawrin Dean.
17 Q. And, Mrs. Dean, how are you employed?
18 A. I’m a clinical director at Psychotherapy
19 Services in Fort worth, Texas.
20 Q. And how long have you been doing that?
21 A. About 18 years.
22 Q. And prior to doing that, what did you do for a
23 living?
24 A. I worked for Tarrant County Adult Probation
24 Department, both in the supervision of sex offenders in
1 the community, and also as a court officer. And prior
2 to that, I was at Tarrant County Juvenile Services.
3 Q. So how long have you been in the field of
4 criminal justice?
5 A. Way too long.
8
6 Q. Twenty - - probably 30 years?
7 A. Probably 40 years.
8 Q. Forty years?
9 A. Starting when I was 3.
10 Q. And what’s your educational background?
11 A. I have a - - I have a undergraduate degree in
12 psychology and a master’s in counseling, and licensed
13 by the State of Texas to do sex offender treatment.
14 Q. And I’m sure the court is aware of your
15 treatment program, I’m assuming the court has used you
16 in the past. But just for the record, tell the court
17 what some of the goals are of the PSY, or the
18 Psychotherapy Services Yokefellows, what is - - what are
19 y’all trying to accomplish?
20 A. Prevent sexual recidivism.
21 Q. I mean, that’s the easy answer.
22 A. Yes.
23 Q. And what is - - how do you accomplish some of
24 those goals with offenders?
25 A. Well, we have a - - certainly a specialized
1 treatment program that deals with the elements that led
2 to sexual offending to begin with. But, of course,
9
3 it’s about addressing all of the other issues as well.
4 Q. And other issues would be maybe
5 psychological or - - I mean, whatever the issues are
6 that affect - -
7 A. Whatever the issues, yes. Each offender
8 typically comes to us with varying degrees of problems.
9 So it’s important to have like a multi-systemic
10 approach.
11 Q. And just so the court is aware, I would
12 suggest you’re one of the top agencies in the state of
13 Texas with this expertise, based on my practicing law
14 over the state of Texas.
15 How long have you and Ezio Leite been in
16 business together specifically?
17 A. Probably about 18 years.
18 Q. And do you conduct the counseling sessions,
19 group and individual? Who does that specifically?
20 A. I - - we all do. We all have a full load. We
21 have - - certainly provide treatment for the federal
22 system, the civil commitment program, the probation
23 departments in Tarrant County and Wise County and
24 Parker County. We even have a juvenile program as
25 well. So we pretty much address every population that
10
1 there is.
2 Q. And some counties, I’m not - - some counties
3 do, some counties don’t, but I know in Tarrant County
4 if there’s someone who has a PSI, the - - of an inmate
5 is in custody or on bond, they’re ordered to come to
6 you, PSY, for an evaluation; is that correct?
7 A. Yeah. We do all the evaluations for the
8 presentence investigations.
9 Q. In this case, though, Mr. Cardarelli, prior to,
10 my employment, actually was going to PSY or - - is it
11 easier to say PSY?
12 A. It’s much easier to say PSY.
13 Q. PSY, which stands for, for the record,
14 Psychotherapy Services and Yokefellows; is that right?
15 A. Correct.
16 Q. Do your records indicate when Mr. Cardarelli
17 started coming to PSY?
18 A. It was in March of 2013. And he was referred
19 by his previous defense attorney for an assessment and
20 treatment.
21 Q. And share with the court some of the things
22 that - - well, let me ask you this: First of all.
11
23 describe, candidly to the Judge, how Mr. Cardarelli
24 appeared and his attitude and stuff like that
25 initially.
1 A. Initially, my primary focus was the suicidal,
2 the depression, irrational behavior thinking,
3 significant K2 use. He would come in many times very
4 high, talking delusional. So, immediately, we started
5 kind of focusing on that.
6 We tried to get him in to - - I believe we
7 did make an appointment at Millwood, got him in for
8 evaluation for medication. He was just - - he was very
9 unstable at first.
10 Q. And for how long did you see Mr. Cardarelli?
11 A. I’ve seen him off and on since that time.
12 Pretty regular appointments at first. He - - I think
13 it’s probably been about six months when he started
14 maybe showing much improvement, a little bit more
15 rational responsible behavior, started to respond - -
16 started responding to some of the clinical
17 interventions we were attempting to give him.
18 We - - I’ve seen him in individuals and
19 then we also put him in our young offender program.
12
20 That’s a new program that we developed for young males
21 Mr. Cardarelli’s age that isn’t so much focused on
22 pedophilia or sexual deviancy, but more the poor sexual
23 boundaries, poor choices, irresponsibility, immaturity.
24 Q. And is one of the tools used for males, the
25 penile - - the plethysmograph; is that right?
1 A. We do. We use that to assess their sexual
2 preferences in regards to age, gender, and behavioral
3 themes.
4 Q. And is that mechanism a good tool for courts
5 to help understand how people behave as sex offenders?
6 A. It certainly gives us a - - a motivation for
7 the behavior. You know, we have several people that
8 act out sexually with children. Some, that’s their
9 sexual preference, and their treatment would be a
10 little bit different, more along pedophilia-type
11 treatment. And then some people act out sexually
12 because of cognitive distortions, justifications, and
13 so their treatment is more cognitively based.
14 Q. And did you do a risk assessment on
15 Mr. Cardarelli?
16 A. Uh-huh. Yes.
13
17 Q. And what is that risk assessment?
18 A. Well, risk assessment is kind of the buzz word
19 today in the field because we have so many people in
20 the community that are registered, that we don’t have
21 the money or the resources to watch everybody. And
22 some people we need to watch 24 hours, seven days a
23 week. And some people will benefit in treatment and
24 lower their risk and don’t need to be watched so much.
25 So, risk assessment is certainly the direction of sex
1 offender treatment in the community.
2 We have a Static 99 risk that the state
3 of Texas has adopted to put on the website to identify
4 people’s risk for the community, for neighbors to look
5 up and see who lives in their neighborhood. And it
6 identifies their risk.
7 That static was not particularly normed
8 on people who act out - - who are guilty of child
9 pornography. However, they’ve modified it a little bit
10 so that it can be used for people who have child porn
11 cases and not hands-on victims.
12 So, on the Static 99, he came out at the
13 moderate risk. And then developing that into the
14
14 categories, they look at 5 year, 10 year, and 15 year
15 recidivism. So, he got - - and on this one, the way
16 they modified it, is they took off whether he’s related
17 to the victims because, of course, their images,
18 whether they’re male, and whether he’s - - whether they
19 were strangers. They took off those categories. And
20 then they said you can accurately - - or more reliably
21 assess his risk.
22 So, he came out with a - - with three
23 points on that, one being his age. Younger offenders
24 - - in the world of criminology, younger offenders
25 offend more often. So they put that into the formula.
1 One point, because he’s not been in a
2 relationship for two years, that denotes a higher risk.
3 And the third one was - - so sorry. I went blank here.
4 Oh, and if - - and if he receives a conviction for this
5 child porn, if you - - if you have a conviction for a
6 non-contact sexual offense, oftentimes that - - it falls
7 into the fetish paraphilia behaviors, and those are
8 higher risk offenders.
9 So, if he receives this con - - a
10 conviction for this offense, then he would get a point
15
11 for that. And I went on and gave him that point, just
12 in anticipation of what his true risk might be. So we
13 came up with a 3. Then they take the people that have
14 a - - score a 3 on this risk assessment, and then they
15 determine their percentage or risk - - percentage of
16 risk.
17 So, on Mark, he - - in 5 years, he has a
18 risk to recidivate of 14 percent, I’m so sorry, in 5
19 years. In 10 years, it’s 19 - - it’s - - I’m so sorry.
20 Let me start again. It’s 12 percent over a 5 year
21 period, 14 percent over a 10 year period, and then 19
22 percent over a 15 year period. And when you look at
23 that for - - certainly for risk assessment, that means
24 that 86 percent would not re-offend. And so certainly
25 providing the resources, you know, we certainly have, I
1 think, with sex offenders, the caliber of treatment,
2 the caliber of supervision that we have in the
3 community, accountability, certainly bringing in the
4 families, we certainly can increase the accountability.
5 I think we’ve proven over the years that we have a
6 significant impact on recidivism. Registration, I
7 think, is - - has been developed in hopes of lowering
8 that as well, too.
16
...
7 You know, I’m in treatment. I believe
8 people can change. I believe that if he goes to prison
9 as a immature 23-year-old, he’s going to come out
10 not only with these problems, but he’s going to come out
11 with a whole new set of problems.
12 And I believe community safety - - we’re
13 not really addressing the big picture if we’re making
14 him higher risk when he comes out. So I strongly
15 believe in the opportunity for probation. However, if
16 they violate their conditions, I’ll be the first one to
17 testify against them.
18 Q. And I can - - and I can tell the court, that
19 will be the absolute truth. Because I’ve had that
20 happen - -
21 A. Many times.
22 Q. - - many times in Tarrant County.
23 A. Yes.
24 Q. Because you’re a candid, honest person.
25 That’s why I have the best - - utmost respect for you.
1 As a matter of fact, you’ve testified in federal court
17
2 for me, and you testified truthfully in front of John
3 McBride (sic), and that guy didn’t get very good results.
4 A. No he didn’t, deservedly.
5 Q. But that was the truth, and that’s what we
6 have to deal with.
7 A. Deservedly, yes.
8 MR. ST. JOHN: Judge, I pass the witness.
The court has a wide latitude in sentencing, it is Appellant’s belief the court was not
fair in assessing what the appropriate sentence should be based on the mitigation
presented. The prosecutor commented, “If you commit a child porn case in this county,
you go to the pen usually.”
It appeared to the Appellant the court had a knee jerk reaction to the prosecutor.
Therefore, the Appellant would argue that the court is in violation of the 8th Amendment to
the Constitution based on its reasoning and finding. (RR Vol. I, pp. 1-69)
18
CONCLUSION AND PRAYER
WHEREFORE, PREMISES CONSIDERED, Petitioner prays this Honorable Court
to grant this petition for discretionary review and, after a full review hereon, that the Court
enter an Order reversing the decision of the Second Court of Appeals and of the trial court
and to remand the cause for a new trial and for such other and further relief to which he
may be justly entitled.
Respectfully Submitted,
/S/ J. Warren St. John
J. WARREN ST. JOHN
State Bar No. 18986300
2020 Burnett Plaza
801 Cherry Street, Unit No. 5
Fort Worth, Texas 76102-6810
Telephone: 817/336-1436
Fax: 817/336-1429
E-mail: jwlawyer@aol.com
ATTORNEY FOR PETITIONER
19
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Petition for
Discretionary Review was delivered to the State Prosecuting Attorney, P.O. Box 12405,
Austin, Texas 78711 and to the Honorable Eddy Lewallen, Assistant District Attorney,
Parker County, Texas, on this the 11 th day of September, 2015.
/S/ J. Warren St. John
J. WARREN ST. JOHN
20
CERTIFICATE OF COMPLIANCE WITH RULE 9.4(i)
Certificate of Compliance with Type-Volume Limitation
This brief contains 3,840 words, in compliance with TEX.R.APP.P 9.4(i)
/S/ J. Warren St. John
DATED: September 11, 2015
21
APPENDIX
(See Attachment)
COURT OF APPEALS
SECIOND DISTRICT OF TEXAS
FORT WORTH
No.02-14-00405-cR
Mark Massimo Orardarelli S From the 43rd District Court
S of Parker Count'/ (CR13-0129)
V. S August 25,2015;
S Opinion by Justice Gabriel
'Tel421 S.W.3d 922,
928 (Tex App.--Fort Worth 2014, no pet.). The trial court heard testimony from
A,ppellarnt and two other witnesses, and it then recesse