NUMBER 13-16-00553-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

KEVIN TOLEDO, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 148th District Court

of Nueces County, Texas.

MEMORANDUM OPINION

Before Justices Rodriguez, Contreras, and Benavides

Memorandum Opinion by Justice Contreras

Pursuant to a plea bargain agreement, appellant Kevin Toledo pleaded guilty to 

three charges arising from an incident that occurred on or about May 23, 2015: (1) 

aggravated assault, a second-degree felony, see TEX. PENAL CODE ANN. § 22.02 (West, 

Westlaw through 2017 1st C.S.); (2) assault family violence with a prior conviction, a thirddegree felony, see id. § 22.01 (West, Westlaw through 2017 1st C.S.); and (3) evading 
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arrest or detention using a vehicle, a third-degree felony. See id. § 38.04 (West, Westlaw 

through 2017 1st C.S.). Adjudication was deferred and he was placed on community 

supervision for five years. Subsequently, the trial court granted the State’s motion to 

revoke probation, adjudicated Toledo guilty, and sentenced him to eighteen years’ 

imprisonment for the second-degree felony and ten years’ imprisonment for the thirddegree felonies, with the sentences to run concurrently. By a single issue on appeal, 

Toledo contends that the eighteen-year sentence was unconstitutionally excessive. We 

affirm.

I. APPLICABLE LAW

The Eighth Amendment of the United States Constitution, applicable to 

punishments imposed by state courts through the Due Process Clause of the Fourteenth 

Amendment, provides that “[e]xcessive bail shall not be required, nor excessive fines, nor 

cruel and unusual punishment inflicted.” U.S. CONST. amends. VIII, XIV. The Eighth 

Amendment requires that punishment be “graduated and proportioned to the offense,”

but it does not require “strict proportionality” between the crime and the sentence. State 

v. Simpson, 488 S.W.3d 318, 322 (Tex. Crim. App. 2016) (citing Harmelin v. Michigan, 

501 U.S. 957, 1001 (1991) (Kennedy, J., concurring)). Instead, it forbids only extreme 

sentences that are “grossly disproportionate” to the crime. Id. (citing Ewing v. California, 

538 U.S. 11, 23 (2003)).

To determine whether a sentence for a term of years is grossly 

disproportionate for a particular defendant’s crime, a court must judge the 

severity of the sentence in light of the harm caused or threatened to the 

victim, the culpability of the offender, and the offender’s prior adjudicated 

and unadjudicated offenses. In the rare case in which this threshold 

comparison leads to an inference of gross disproportionality, the court 

should then compare the defendant’s sentence with the sentences received 

by other offenders in the same jurisdiction and with the sentences imposed 
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for the same crime in other jurisdictions. If this comparative analysis 

validates an initial judgment that the sentence is grossly disproportionate, 

the sentence is cruel and unusual.

Id. at 323 (citations omitted).

It is well-settled that almost every constitutional or statutory right can be waived by 

a failure to object. Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986). To 

preserve a complaint of disproportionate sentencing, the defendant must make a timely, 

specific objection to the trial court or raise the issue in a motion for new trial. Rhoades v. 

State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996); Kim v. State, 283 S.W.3d 473, 475 

(Tex. App.—Fort Worth 2009, pet. ref’d); Quintana v. State, 777 S.W.2d 474, 479 (Tex.

App.—Corpus Christi 1989, pet. ref’d) (holding defendant waived cruel and unusual 

punishment argument by failing to object); see TEX. R. APP. P. 33.1.

II. ANALYSIS

Toledo argues on appeal that “[t]he 18 year sentence imposed by the court 

constituted an excessive sentence under the facts of the case adduced on the record, 

and was more than necessary to accomplish the sentencing objectives articulated under 

the Texas Penal Code.” He cites the state statute explaining the objectives of the penal 

code, see TEX. PENAL CODE ANN. § 1.02 (West, Westlaw through 2017 1st C.S.), and the 

federal statute delineating factors to be considered in imposing a sentence. See 18 

U.S.C.A. § 3553 (West, Westlaw through P.L. 115-89).

The State contends that Toledo has waived his issue because: (1) he “failed to 

raise any constitutional objection to his sentence in the trial court, either at the time 

sentence was imposed or in his motions for new trial and reconsideration”; and (2) he 

failed to provide a reporter’s record of the initial plea proceedings. We agree.
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Following the trial court’s adjudication and imposition of sentence, Toledo timely 

filed a motion for new trial and a “Motion for Reconsideration and Reduction of Sentence.” 

The new trial motion did not challenge Toledo’s sentence. The motion for consideration 

alleged only that “the sentence creates a hardship and burden upon [Toledo]’s family”

and that “society will be adequately protected and [Toledo] punished if the term of 

imprisonment were to be lowered.” Neither motion argued that the sentence was 

excessive on constitutional or statutory grounds, and those specific arguments were not 

made at the adjudication hearing. The allegations in the motion for reconsideration that 

the sentence creates a hardship for Toledo’s family and that a lower sentence would be 

adequate do not, by themselves, raise a constitutional excessive-sentence or 

disproportionality claim. See Simpson, 488 S.W.3d at 324 (noting that, although evidence 

of the defendant’s “minimal role in the offense, the age and circumstances of the prior 

offenses, his need for drug treatment, [and] his employment” was “relevant to the trial 

court’s normative punishment decision,” it did not substantiate the “legal claim that his 

sentence was unconstitutional”).

In any event, even if we were to construe Toledo’s motion for reconsideration as 

preserving the constitutional excessive-sentence issue for appeal, we would not be able 

to review that issue because, as the State notes, the record does not contain a transcript 

of the plea proceedings that took place at the time Toledo’s adjudication was initially 

deferred. The issue in a disproportionality analysis following revocation of deferredadjudication probation is whether the sentence was warranted by the crime for which the 

appellant was convicted, not whether it was warranted by the violations proved at the 

adjudication hearing. Atchison v. State, 124 S.W.3d 755, 760 (Tex. App.—Austin 2003, 
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pet. ref’d) (citing Sullivan v. State, 975 S.W.2d 755, 756 (Tex. App.—Corpus Christi 1998, 

no pet.); Fielding v. State, 719 S.W.2d 361, 363 (Tex. App.—Dallas 1986, pet. ref’d)). 

And it is the appellant’s burden “to present a record in the court of appeals that 

demonstrates he is entitled to appellate relief.” Davis v. State, 345 S.W.3d 71, 78 (Tex. 

Crim. App. 2011). Without a record of the initial plea proceedings, we cannot determine 

what evidence the trial court may have considered relevant to the disproportionality 

analysis, including “harm caused or threatened to the victim, the culpability of the 

offender, [or] the offender’s prior adjudicated and unadjudicated offenses.” Simpson, 488 

S.W.3d at 323.

For the foregoing reasons, we conclude that Toledo’s issue on appeal has been 

waived, and we overrule it.

III. CONCLUSION

The trial court’s judgment is affirmed.

DORI CONTRERAS 

Justice

Do not publish.

TEX. R. APP. P. 47.2(b).

Delivered and filed the

4th day of January, 2018.