Background

• Kevin Toledo pleaded guilty pursuant to a plea bargain to aggravated assault (2nd°), assault-family-violence with a prior (3rd°), and evading arrest in a vehicle (3rd°) for conduct on or about May 23, 2015.
• Adjudication was initially deferred; Toledo received five years' community supervision.
• The State later moved to revoke probation; the trial court adjudicated guilt and sentenced Toledo to 18 years for the second-degree felony and 10 years for each third-degree felony, to run concurrently.
• Toledo appealed, arguing the 18-year sentence was constitutionally excessive and more than necessary under sentencing objectives.
• The State argued Toledo waived the constitutional claim by failing to make a timely, specific objection at sentencing or in a proper motion for new trial and noted the record lacks a transcript of the initial plea proceedings.
• The court found Toledo waived the disproportionality claim and, alternatively, that review was unavailable because the record lacked the initial plea transcript necessary for a disproportionality analysis following revocation of deferred adjudication.

Issues

Key Cases Cited

• State v. Simpson, 488 S.W.3d 318 (Tex. Crim. App. 2016) (sets Eighth Amendment disproportionality framework)
• Harmelin v. Michigan, 501 U.S. 957 (U.S. 1991) (Eighth Amendment does not require strict proportionality)
• Ewing v. California, 538 U.S. 11 (U.S. 2003) (gross disproportionality standard)
• Smith v. State, 721 S.W.2d 844 (Tex. Crim. App. 1986) (constitutional rights can be waived by failure to object)
• Rhoades v. State, 934 S.W.2d 113 (Tex. Crim. App. 1996) (preservation requirement for disproportionality complaints)
• Atchison v. State, 124 S.W.3d 755 (Tex. App.—Austin 2003) (post-revocation disproportionality focuses on the convicted offense, not revocation evidence)
• Davis v. State, 345 S.W.3d 71 (Tex. Crim. App. 2011) (appellant bears burden to present a sufficient appellate record)