Kevin Toledo v. State

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 third-
degree felony, see id. § 22.01 (West, Westlaw through 2017 1st C.S.); and (3) evading
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 third-
degree 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 deferred-
adjudication 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.
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