ERIQUE HOWARD v. THE STATE OF TEXAS (2026)

OPINION

A jury found appellant, Erique Howard, guilty of two charges of aggravated sexual assault and one charge of aggravated robbery. The trial court sentenced appellant to fifty years' imprisonment. Appellant now argues that the trial court deprived him of due process ¹ by vindictively sentencing appellant, causing appellant to involuntarily enter a post-conviction sentencing agreement, and failing to inquire into the voluntariness of appellant's sentencing agreement. We conclude that the trial court did not vindictively sentence appellant and that appellant failed to preserve his remaining complaints for appellate review.

I. BACKGROUND

Appellant was indicted for two counts of aggravated sexual assault and one count of aggravated robbery with a deadly weapon. Appellant pleaded not guilty, and the case proceeded to a jury trial on guilt-innocence.

1. Guilt-Innocence

The complainant, Kate ² , testified that appellant pointed a gun at her and forced her to drive him to a secluded area where he then took the money in her wallet and forced her to engage in oral and vaginal sex. Kate also testified appellant took a picture of her driver's license—which showed her home address—and then told her that she “better not tell no one.” Kate testified that she worried appellant would kill her. A forensic nurse who examined Kate after the assault testified that she had witnessed or led over 350 sexual assault examinations in her career and that, based on her experience, Kate suffered “an incredibly abnormal amount of injury to the genital area.” The State called another woman, Andrea ³ , who also testified that appellant robbed and sexually assaulted her. Andrea testified that appellant pointed a gun at her head, forced her to drive to a secluded area, took the money in her wallet, and then forced her to engage in oral and vaginal sex.

In appellant's defense, defense counsel suggested that Kate and Andrea were prostitutes and that both women fabricated their allegations because appellant refused to pay them for their services. After deliberation, the jury returned guilty verdicts on all three counts.

2. Punishment

Appellant elected to have the trial court assess punishment. In a short post-verdict hearing, the trial court made comments that now form the basis of appellant's complaints on appeal. The trial court stated:

Mr. Howard, here is the situation. The jury has found you guilty of the offenses. This is set to be the punishment phase․

However, your punishment range is 5 to life and the Court is required to consider the entire range, taking into all the facts -- take into consideration all the facts, all the information and I will.

However, I told you before we started this, this is probably one you didn't want to come to Court for, but we are here. Before we start this, I am advising you, y'all want to take a minute and if you having a say over how long it's going to be is important, then you want to sit down and have a conversation with your attorney in order to see where y'all end up. The reason I am doing it this way is because there is -- you exposed to a lot in terms of time, a lot and the people that they bring in, they are exposed to the whole cross and all that other stuff on what -- and I haven't heard -- I haven't made a determination one way or the other. I don't want anything I say to lead you to believe that is the situation where I've decided something. I haven't.

But if we get there, I make the decision. If you want to stay in your decision, y'all should probably sit down and have a conversation.

The trial court then inquired what the parties' respective plea bargain positions were prior to trial. The prosecutor answered that the State now wanted a life sentence but was previously willing to accept forty years. Defense counsel answered that appellant had previously been open to twenty years. The trial court continued:

I looked at it from the lens of there are allegedly a lot of people and I can appreciate the trauma if it is a true allegation that is associated with having to relive that in front of 14 other people and talk about something. So in order to appreciate you saying, hey, I did that and not going through the trial thing and what it would give them back, I did say at that time I was inclined to be at a 30, but I was at a 30 before hearing any testimony. If those allegations as they are articulated were proven to be true. And that was off the benefit of not having them go through that experience.

This is that once again conversation we're having. There will be a punishment hearing. If you would like to have a say, go back and talk to your lawyer and y'all and the State talk about something. I think y'all should be in the 40 to 50 range or somewhere -- if y'all are talking about negotiate, somewhere between there. I'm not saying that I've made that determination because I haven't and I don't know what punishment is going to yield; but if you want your say, this is the time for you to sit and have that conversation.

If giving more gets you to the lower end, you may want to consider that or if not, gets you to that higher end, you might want to consider that, too. That's up to you, but this is where we are and before I make a decision, I am wanting to afford you the opportunity to make a decision of your own. Okay.

Appellant's counsel informed the trial court that appellant wanted the court to understand that “he's not saying that he's not willing to negotiate with the State; but if the State's negotiation involves stipulations as to him admitting guilt in front of other people, it will hurt his appellate chances. So he -- he is happy to have them speak to him.” The trial court responded: “And y'all are going to consider that all between that 40- and 50-range and see where y'all get and just let me know.” Appellant's counsel replied: “Understood.” After a recess, the trial court stated:

All righty. Is everyone in?

We're back on the record. At this time the Court having found you guilty, I believe the parties have discussed it in accordance with the plea agreement of 50 -- in accordance with the plea agreement, the Court will sentence you to 50 years TDC, credit for every single day that you served, sir.

At this time we will have the impact statements, and I understand you are retaining your rights to the appellate -- the appellate process. We will now have the impact statements.

The trial court signed judgments assessing punishment in accordance with its oral pronouncement. The record does not reflect that appellant filed a motion for new trial or other post-judgment motion. This appeal followed.

II. ANALYSIS

Appellant frames his argument as a single issue: “Whether the trial court engaged in judicial vindictiveness rendering appellant's punishment agreement involuntary.” However, appellant's argument contains multiple complaints. As we read appellant's brief, he argues: (1) the trial court vindictively sentenced appellant as punishment for appellant exercising his right to a jury trial, (2) the trial court's actions rendered appellant's post-conviction sentencing agreement involuntary, and (3) the trial court erred in failing to inquire into the voluntariness of appellant's post-conviction sentencing agreement. We conclude the trial court did not vindictively sentence appellant and that appellant failed to preserve his remaining complaints for appellate review.

1. The trial court did not vindictively sentence appellant.

Appellant argues that the trial court vindictively sentenced him as punishment for his exercise of the right to a jury trial.⁴ The State argues that appellant forfeited this challenge by failing to raise it in the trial court. Alternatively, the State argues that the record conclusively shows the trial court did not behave vindictively toward appellant. We conclude appellant should have preserved this complaint for appellate review and that, even if he had preserved the complaint, the record does not show the trial court vindictively sentenced appellant.

A. Error Preservation

Appellant did not raise the issue of judicial vindictiveness at any point prior to his appellate brief. Appellant should have raised the issue in a motion for new trial. See generally Mercado v. State, 718 S.W.2d 291, 295–96 (Tex. Crim. App. 1986) (concluding an appellant not only failed to preserve the “vindictive” component of his complaint for appellate review but expressly acquiesced to the procedure used by the trial court); Harris v. State, 364 S.W.3d 328, 337 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (holding that a judicial vindictiveness complaint must be preserved for appellate review). Nonetheless, in the interest of justice, we address the merits of appellant's complaint.

B. Applicable Law

Due process prohibits punishing a defendant for exercising his lawful constitutional or statutory rights. United States v. Goodwin, 457 U.S. 368, 372 (1982). The right to a jury trial is fundamental to the proper functioning of our adjudicatory process. Ex parte Lyles, 891 S.W.2d 960, 961–62 (Tex. Crim. App. 1995).

Appellant relies on judicial vindictiveness concepts derived from North Carolina v. Pearce, in which the Supreme Court of the United States held that “whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear.” 395 U.S. 711, 726 (1969), overruled in part by Alabama v. Smith, 490 U.S. 794, 799 (1989) (emphasis added). This established a prophylactic rule that creates a presumption of judicial vindictiveness in certain cases. See Wiltz v. State, 863 S.W.2d 463, 464 (Tex. Crim. App. 1993). But because this was appellant's first trial on these charges, the Pearce presumption does not apply. See generally Alabama, 490 U.S. at 799–800. In such instances, the defendant must prove actual vindictiveness. See generally id. at 799.

In Garcia v. State, the First Court of Appeals addressed a vindictive sentencing complaint to which the Pearce presumption did not apply and concluded that the trial court stated sufficient, objective, and non-vindictive reasons justifying its decision to increase the defendant's sentence after a new trial.⁵ No. 01-00-00073-CR, 2002 WL 1164135, at *8–*9 (Tex. App.—Houston [1st Dist.] May 30, 2002, pet. ref'd) (mem. op., not designated for publication). The First Court highlighted the trial court's consideration of new evidence in assessing the higher sentence as one of the non-vindictive reasons justifying the trial court's decision. See id.

A sentencing judge is allowed a “great deal of discretion” in determining the appropriate punishment in any given case. Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). In assessing punishment, the trier of fact may consider all the evidence introduced at the guilt-innocence stage of trial. See Landry v. State, 706 S.W.2d 105, 112–13 (Tex. Crim. App. 1985), overruled in part on other grounds by Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). The Supreme Court of the United States has explained that the relevant sentencing information available to a judge after a plea “will usually be considerably less than that available after a trial.” Alabama, 490 U.S. at 801 (addressing an increase to a defendant's sentence after a new trial).

Additionally, the Supreme Court has acknowledged that “after trial, the factors that may have indicated leniency as consideration for the guilty plea are no longer present.” Id. The Supreme Court has explained that there “is no doubt that ․ defendants who are willing to plead non vult may be treated more leniently than those who go to trial, but withholding the possibility of leniency from the latter cannot be equated with impermissible punishment as long as our cases sustaining plea bargaining remain undisturbed.” Corbitt v. New Jersey, 439 U.S. 212, 223 (1978).

C. Application

Appellant contends that the trial court's comments “make clear that the trial court intended to increase [appellant's] punishment simply because [appellant] had exercised his right to a trial.” However, the record does not support this assertion.⁶

The trial court expressed empathy for the State's testifying witnesses and an interest in sparing those witnesses from the trauma associated with testifying. However, these comments merely acknowledged that factors that may have indicated leniency as consideration for a guilty plea—such as obviating the need for victim testimony—were no longer present after the jury returned a guilty verdict. The Supreme Court has explained that after trial, the factors that may have indicated leniency as consideration for a guilty plea are no longer present,⁷ and that withholding the possibility of leniency from defendants who go to trial “cannot be equated with impermissible punishment as long as [the Supreme Court's] cases sustaining plea bargaining remain undisturbed.”⁸

The trial court also explained that the thirty-year sentence it was willing to accept as part of a pretrial plea bargain was formulated “before hearing any testimony.” During guilt-innocence, the trial court heard three days of testimony, including: (1) Kate's testimony describing the violent sexual assaults and robbery, as well as her fear that appellant would kill her; (2) a forensic nurse's testimony that Kate experienced “an incredibly abnormal amount of injury to the genital area”; and (3) Andrea's testimony that appellant also sexually assaulted and robbed her at gunpoint. The trial court was entitled to consider this evidence in assessing punishment. See Landry, 706 S.W.2d at 112–13. And consideration of new evidence is a non-vindictive basis for increasing a defendant's sentence. See Garcia, 2002 WL 1164135, at *8–*9.

The trial court should not have suggested a punishment range to guide the parties' negotiations. See generally Perkins v. Court of Appeals for Third Supreme Judicial Dist. of Tex., at Austin, 738 S.W.2d 276, 282 (Tex. Crim. App. 1987) (“Although Texas trial judges are not expressly prohibited by statute or any rule of law from participating in a plea bargaining session, this Court has nevertheless suggested that a trial judge should not participate in any plea bargain agreement discussions until an agreement has been reached between the prosecutor and the defendant.”). However, considered in the context of the entire record and the governing legal standard, the judge's reference to a sentencing range does not demonstrate that appellant's sentence was motivated by judicial vindictiveness. Before suggesting that range, the trial court asked the parties about their pretrial plea-bargaining positions. Defendant was previously willing to accept a twenty-year sentence. The State was previously willing to accept a forty-year sentence, but the prosecutor explained that the State now sought a life sentence. Only after receiving this information did the trial court state that it thought the parties “should be in the 40 to 50 range or somewhere ․ between there.” Notably, this range limited the State's bargaining power as much, if not more, than appellant's given the State's desire for a life sentence.

Additionally, despite providing a range to guide the parties' negotiations, the trial court clearly stated several times that it had not already determined appellant's punishment. The trial court said it would consider the “entire range” of punishment and “take into consideration all the facts, all the information” presented to it. The trial court explained: “I haven't made a determination one way or the other. I don't want anything I say to lead you to believe that is the situation where I've decided something. I haven't.” After suggesting the range of forty to fifty years, the trial court immediately clarified, “I'm not saying that I've made that determination because I haven't and I don't know what punishment is going to yield.” Thus, the trial court's comments demonstrate that it had not already decided appellant's punishment and was committed to considering any evidence presented on punishment. These sentiments indicate fairness—not vindictiveness—motivated the trial court. See generally Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006) (rejecting argument that trial court was biased in part because the record contained explicit evidence that the trial court considered the full range of punishment).

We conclude that the trial court stated, on the record, sufficient, objective, and non-vindictive reasons that justify its decision to assess a higher punishment after the jury returned guilty verdicts than the court would have accepted in exchange for a guilty plea. See generally Garcia, 2002 WL 1164135, at *8–*9; Corbitt, 439 U.S. at 223. Because appellant has failed to show that his fifty-year sentence for two counts of aggravated sexual assault and one count of aggravated robbery was the result of actual judicial vindictiveness, he has shown no federal due process violation on this ground. See Garcia, 2002 WL 1164135, at *9. We overrule appellant's contentions on issue one.

Although the entirety of this record does not demonstrate that the trial court acted vindictively, we do not endorse the manner in which this sentencing proceeding unfolded. The trial court's actions here showed a lack of care creating an appearance of judicial involvement in the parties' negotiations that courts should strive to avoid.

Post-verdict punishment agreements are not unusual and can serve legitimate interests of efficiency and finality while allowing both the defense and the State a measure of control over the ultimate punishment outcome. When handled with care, they are a practical and appropriate tool. But when a trial court elects to broach or facilitate such an agreement in open court, restraint is essential. The court must take care not to appear to penalize a defendant for exercising constitutional rights, and it should avoid anchoring the discussion with specific sentencing numbers in a way that could reasonably be understood as pressuring either party or influencing the outcome. Although we do not hold that the formalities required for acceptance of a guilty plea apply to post-verdict sentencing agreements, any such agreement should be clearly confirmed on the record in the defendant's presence. Clear procedures protect the defendant's rights, preserve confidence in the sentencing process, and avoid the sort of ambiguity complained of in this record.

2. Appellant failed to preserve his remaining complaints for appellate review.

In what we construe as appellant's second and third issues, he argues that his post-conviction sentencing agreement was involuntary and that the trial court erred by failing to inquire into the voluntariness of that agreement. We do not reach the merits of these issues because appellant failed to preserve them for appellate review.

Ordinarily, an appellant must make a timely request, objection, or motion in the trial court in order to preserve a complaint for appellate review. Tex. R. App. P. 33.1(a). Only a few rights warrant an exception from the normal preservation-of-error rule.⁹ Elizondo v. State, 541 S.W.3d 271, 275 (Tex. App.—Houston [14th Dist.] 2017, pet. ref'd). Appellants must preserve error on alleged violations of most constitutional rights, even those assured by due process. See id. (citing Ieppert v. State, 908 S.W.2d 217, 219 (Tex. Crim. App. 1995)). Generally, an appellant “may not assert error pertaining to his sentence or punishment where he failed to object or otherwise raise such error in the trial court.” Mercado, 718 S.W.2d at 295–96 (analyzing whether an appellant preserved his complaint that the trial court acted vindictively by entering an affirmative finding regarding the use of a deadly weapon after appellant gave oral notice of appeal).¹⁰

Appellant does not cite any authority providing that his challenges to the voluntariness of his post-conviction sentencing agreement and the trial court's failure to inquire as to the voluntariness of that agreement involve rights so fundamental to the proper functioning of our adjudicatory process that they need not be preserved. We have found no such authority. In the absence of such authority, we conclude that normal preservation-of-error principles apply to these complaints. See Elizondo, 541 S.W.3d at 275; see also Mercado, 718 S.W.2d at 296.

Because appellant did not raise either of these complaints at any point prior to his appellate brief, we hold that appellant failed to preserve these complaints for appellate review. See Elizondo, 541 S.W.3d at 275; Tex. R. App. P. 33.1(a). As such, we do not reach the merits of these issues.

III. CONCLUSION

Having overruled appellant's contentions on issue one and concluded that appellant failed to preserve issues two and three for appellate review, we affirm the judgments of the trial court.

FOOTNOTES

1.   Appellant has proffered no argument concerning the protection provided by the Texas Constitution or how that protection differs from the protection provided by the United States Constitution. “State and federal constitutional claims should be argued in separate grounds, with separate substantive analysis or argument provided for each ground.” Muniz v. State, 851 S.W.2d 238, 251 (Tex. Crim. App. 1993).

2.   We refer to the complainant by a pseudonym, both to protect her privacy and for ease of reading.

3.   We refer to this witness by a pseudonym, both to protect her privacy and for ease of reading.

4.   Appellant also alleges the trial court's comments “made clear” that if appellant “pursued his statutory right to a punishment hearing that included additional victim testimony, [appellant's] punishment would necessarily increase again.” To the extent appellant argues the trial court acted vindictively regarding his potential exercise of the right to a punishment hearing, that argument is unpersuasive. Judicial vindictiveness involves punishing a defendant for a right he has exercised, and appellant did not exercise his right to a punishment hearing. See generally Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978) (explaining that “[t]o punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort”) (emphasis added).

5.   The Pearce presumption did not apply in Garcia because the defendant was sentenced by a different judge in his new trial. Garcia, 2002 WL 1164135, at *8.

6.   As a threshold matter, the record suggests that the trial court sentenced appellant in accordance with a post-conviction sentencing agreement reached between appellant and the State. When a trial judge follows a recommendation for punishment devised and agreed upon by the parties, it is unclear how a claim of judicial vindictiveness in sentencing could be anything but “utterly spurious.” See Castleberry v. State, 704 S.W.2d 21, 27 n.9 (Tex. Crim. App. 1984). However, appellant does not concede that he entered any such agreement, and the record is not conclusive on this point. For the purposes of our analysis on this issue, we presume appellant did not voluntarily enter any such agreement.

7.   See Alabama, 490 U.S. at 801.

8.   See Corbitt, 439 U.S. at 223.

9.   “Except for complaints involving systemic (or absolute) requirements, or rights that are waivable only, ․ all other complaints, whether constitutional, statutory, or otherwise, are forfeited by failure to comply with Rule 33.1(a).” Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004). Waivable-only rights include the right to assistance of counsel, the right to trial by jury, and the statutorily-mandated right that appointed counsel have ten days before trial to prepare. Elizondo v. State, 541 S.W.3d 271, 275 (Tex. App.—Houston [14th Dist.] 2017, pet. ref'd). Absolute, systemic requirements that cannot be waived include personal jurisdiction, subject-matter jurisdiction, and a penal statute's compliance with the separation-of-powers section of the Texas Constitution. Id.

10.   We are mindful that this court previously stated in Martinez v. State that “an appellant is not barred from raising a defect in his sentence for the first time on appeal.” 874 S.W.2d 267, 267 (Tex. App.—Houston [14th Dist.] 1994, pet. ref'd). However, Martinez involved challenges to the imposition of invalid conditions of probation. See 874 S.W.2d at 267–68. In Ex parte Williams, the Court of Criminal Appeals explained that “community supervision is not a sentence or even a part of a sentence,” and that consequently “the illegal granting of community supervision should not be governed by a rule which applies to illegal sentences.” 65 S.W.3d 656, 657 (Tex. Crim. App. 2001) (quoting Speth v. State, 6 S.W.3d 530, 532 (Tex. Crim. App. 1999)). Because this case involves challenges to a sentence rather than probation, the rule expressed in Martinez is not binding on our error preservation analysis. See generally id.

Brad Hart Justice