                                                                              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 SW2d 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

                  'Tel<ias
Thra State of                                     S    (nfp)

                                            JUDGMENT

        This    ,cor"rrl:   has considered the record on appeal in this case and holds that

therre was no en"or in the trial court's       judgment. lt is ordered that the judgment of

ther trial   court is affirmed.


                                              SECOND DISTRICT COIJRT OF APPEALS




                                              By /s/ Lee Gabriel
                                                  Justice Lee Gabriel
                                COURT OF APPEALS
                                SECOND DISTRICT OF TEXAS
                                     FORT WORTH

                                    NO. 02-14-00405-cR


IV'IARK MA.SS;   I   MO CI\RDARELLI                                       APPELLANT

                                               V.

THE S-fAl-E:     O1=   TE).AS                                                    STATE




          I-FIOI/I THE 43RD DISTRICT COURT OF PARKER I3OUNTY
                         TRI,AL COURT NO. CR13-0129




                                MEMORANDUM OPINIONl



      In one pcint, Appellant Mark Massimo Cardarelli appeals his convictions

and sentenc;es for possession of child pornography. We affirmr.

                                     Background Facts

      l\ppellant pleaded guilty           to   three counts   of   por;session   of   child

pornography, a third-degree felony punishable by imprisonment for any term not


              -[er:.
      'Set;            R A,pp P. 47 .4.
rnore than t,e,n y'ears or less than two years and a fine not to exce€d $10,000.

S:ee Tex. Pernal Codre Ann. $i 12.34 (West 2011), $ 43.26(a) (West Supp. 2014).

At the purris;hrrent hearing before the trial court, Appellant, hris mother, and his

psychologist   testifierl. The trial court sentenced Appellant to nine         years'

c,onfinement on each count, to run concurrently. Appellant then filed this appeal.

                                      Discussion

       Irppelliant argues    in his sole point that the trial court erred by not
considering rnil:igating evidence presented at the punishment trial and that the

sentenr;e was therelfore cruel and       unusual. The State       rquestionS whether

A,ppellarnt properly preserve(l his complaints. Appellant did not object at trial to

the   purnishnrent,2   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 recorc must show that the complaint made on appeall was timely made

to the trial c;rrurt "with sufficient specificity to make the trial court aware of the

complaint, unles,s the specific grounds were apparent from the context." Tex. R.

A,pp.F'.33.'1. Nothing in Appellant's motion for new trial indicated             what

A,ppellarnt's r:omplaint   was regarding the trial court's consideration of       the

evidence. A,ppr:llant therefore did not preserve his complaint.




      'The lrial court did not ask Appellant whether he had anything to say why
the sentencers s;hould not be pronounced against him. Seer Tex. Code Crim.
Proc. Ann. art. 42.07 (West 2:006).
       Elverr if' her had,   we note that Appellant's sentence falls 'within the statutory

range for his; offr:nses of possession of child pornography. See Tex. Penal Code

Ann.   $ 12.3;4. The factfinder's discretion to impose any punishment within a
prescrilred statr"rtory range          is   essentially "unfettered." l=x parte Chavez,

213 S.\A/.3d 32Ct,32:3 (Tex. Crim. App. 2006). Subject only to an "exceedingly

rare" and "s,cmewhat amorphous" gross-disproportionality review required by the

Eighth Amendrnent,           a   punishment that falls within the legislatively-prescribed

range iand thal is based upon the factfinder's informed norrnative judgment is

unassailahrler orr   appeal. ld. 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

A,ppellarnt   and two other witnesses, and            it then recesse<j to consider    the

evidenc;e. r//he,n the trial judge pronounced sentence he said on the record,

"[T]he court her:; heard from a counselor in this matter, has heard from your

mother in this   rnatter.           Flowever, when the court takes into context what the

allegations; iagerinst )fou are, the court just cannot, in good conscience, give a

probationary' period rlf time." There was no evidence that thr-' trial court did not

crcnsider A,ppel ant's mitigating evidence, nor does his sentence amount to cruel

and unusual purrishment. We overrule Appellant's sole point.

                                            Conclusion

       Flavinl3 overrLrled Appellant's          sole point, we affirm the trial    court's
judgment
                                               /s/ Lee Gabriel

                                               LEE GABRII=L
                                               JUSTICE

F'ANEL: W\LhlE:R, ['/lElER, and GABRIEL, JJ.

DO NCIT PLIBLISH
Tex. R Aprp. P. '47 2ti,,b)

DELIVERED: r\ugust 25, 2015




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