The opinion
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NOS. PD-0581-22 & PD-0582-22
BEECHER MONTGOMERY, Appellant
v.
THE STATE OF TEXAS, Appellee
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE SECOND COURT OF APPEALS
TARRANT COUNTY
RICHARDSON, J., delivered the opinion of the Court in which SCHENCK,
P.J., YEARY, KEEL, and PARKER, J.J joined. KEEL, J., filed a concurring opinion
in which SCHENCK, P.J., YEARY, and PARKER, J.J., joined. PARKER, J., filed a
concurring opinion in which SCHENCK, P.J., and KEEL, J., joined. WALKER, J.,
filed a dissenting opinion. FINLEY, J. filed a dissenting opinion. NEWELL and
MCCLURE, J.J. dissented.
OPINION
Over Appellant’s objections under the Confrontation Clause, the trial court
conducted a motion to enter adjudication of guilt and revocation hearing virtually.
We must decide whether Appellant was erroneously denied the right to be physically
present to confront witnesses at his adjudication hearing under the Confrontation
Clause. Because the Confrontation Clause does not apply to motion to enter
adjudication of guilt hearings, we find no error and affirm the appellate court below.
Facts
Appellant was indicted for theft from a person and evading arrest with a
vehicle in two separate cause numbers. (1 CR 7). 1 He pled guilty to both (including
signing a judicial confession as part of his plea admonishments) and moved the trial
court to sentence him. (1 CR 49-53). On June 30, 2020, he was placed on Deferred
Adjudication for ten years for both cases. (1 CR 61). As part of the plea agreement,
the State did not pursue habitual-offender enhancement. (1 CR 61).
In August of 2020, after Appellant was arrested for several new offenses, the
State filed a “Petition to Proceed to Adjudication” against Appellant for violating the
terms of his agreement. (1 CR 69). On October 13, 2020, the State amended its
1
Unless otherwise specified, this opinion refers to the appellate record in PD-0581-22.
2
petition with additional violations after Appellant reportedly violated a protective
order multiple times and admitted to using illegal drugs. (1 CR 72).
On October 14, 2020, Appellant filed a written “Objection to Virtual
Proceeding” under the Equal Protection and Due Process clauses. (1 CR 79). On
January 6, 2021, following several resets, a virtual Zoom hearing was held on the
State’s petition. (3 RR 1). At the beginning of the hearing, Appellant re-urged his
written “Objection to Virtual Proceeding.” (3 RR 8-10). On top of the written
objection, Appellant again argued that the virtual setup overly burdened attorney-
client communication, and that he had the right to be present in order to effectively
confront witnesses. (3 RR 12-14). Appellant also pointed out the incongruity with the
State’s position in another case (where the State advocated for an in-person murder
trial to protect confrontation rights) while Appellant himself was being forced against
his objections to a virtual hearing. (3 RR 12-14). After hearing Appellant’s arguments,
the trial court overruled Appellant’s objection but granted him a running objection
“throughout all of the hearings.” (3 RR 15-16). Nevertheless, Appellant renewed his
objection one last time during an oral motion for a directed verdict, which the trial
court denied. (3 RR 89).
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The trial court then found all but one of the State’s alleged violations of the
community supervision agreement to be true. 2 (3 RR 118-19). Subsequently,
Appellant was adjudicated guilty of theft from a person and evading arrest with a
vehicle, and his probation was revoked. Id. (3 RR 195; 1 CR 101). Appellant filed
notices of appeal and motions for new trial under both cause numbers, which were
overruled over operation of law. (1 CR 111, 119).
On direct appeal to the Second Court of Appeals, Appellant argued that the
virtual hearing violated his right to confront witnesses under the Confrontation
Clause, and that he was denied Due Process under the Fourteenth Amendment when
he was not allowed to be physically present at his own hearing. App. Br. to Ct. App.,
Montgomery v. State, Nos. 02-21-00002-CR & 02-21-00003-CR, 2022 WL 5240472,
at *8-18 (Tex. App.—Fort Worth Aug. 21, 2024).
The Court of Appeals interpreted Appellant’s Due Process claim as one that
focused on the technical glitches rather than an objection to the virtual platform
itself. Id. at *3.
His true complaint, however, appears not to be the use of Zoom in
general but that there were several instances in which the virtual
technology utilized was inadequate and therefore did not truly provide
2
The State waived ground five which alleged that Appellant had violated a protective order
(by contacting his mother on three occasions by writing her letters) because the no-contact order
was ambiguously worded. (1 CR 72; 3 RR 16-17).
4
a vehicle in which Appellant could be present at this hearing and
sentencing.
Id. at *3 (internal quotes omitted; emphasis in original). Finding no significant
impairment in his virtual participation, the lower appellate court ruled that Appellant
failed to demonstrate any violation of Due Process:
Accordingly, we conclude that the virtual hearing on the State’s petition
to proceed to adjudication—though not seamless—was not so
inadequate that Montgomery was not permitted to participate in the
hearing on the State’s petition to proceed to adjudication.
Id. at *4.
The lower appellate court also found no violation under the Confrontation
Clause. Id. at *5. It reasoned that “the Confrontation Clause does not apply to a
revocation proceeding because that is not a stage of a criminal prosecution” for the
purpose of the Sixth Amendment. Id. at *1 (internal citations omitted). Accordingly,
the Court of Appeals affirmed the trial court below. Id. at *7.
On petition for discretionary review, Appellant continues his arguments that
the denial of his objection to the virtual proceeding violated both his rights (1) under
the Fourteenth Amendment’s Due Process Clause, and (2) under the Sixth
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Amendment’s Confrontation Clause. PDR, at *3. We granted review only on the
Confrontation Clause claim. 3
The Confrontation Clause, Criminal Prosecutions, and Probation.
The Sixth Amendment guarantees via the Confrontation Clause that “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him; . . . .” U.S. Const., amend VI. In accordance to the fair trial
guarantee that the totality of the Sixth Amendment envisions, the right to confront
witnesses necessarily includes the right to be present. However, unlike the Due
Process Clause which shares many overlapping protections, the Confrontation
Clause, by its explicit text, applies only to “criminal prosecutions.” Id.; see also
Hughes, 691 S.W.3d at 519. 4
The resulting question before us today is whether a motion to enter
adjudication of guilt from a deferred adjudication followed by a motion to revoke
probation lies within a “criminal prosecution” as understood by the Sixth
Amendment. It is undeniable that these proceedings are at least related to a predicate
3
The instant case was initially held for Hughes v. State, 691 S.W.3d 504 (Tex. Crim. App.
2024), and Inman v. State, No. PD-0251-22, 2023 WL 3495573 (Tex. Crim. App. May 17, 2023),
which both had similar issues. Hughes was resolved on Due Process grounds while Inman was
dismissed as improvidently granted.
4
Hughes, which was decided on Due Process grounds, is inapplicable here because of the
unique facts of this case.
6
criminal prosecution and that there is some overlap. And this includes the possibility
that the defendant may lose his liberty. However, several characteristics of these
proceedings lead us to conclude that such a proceeding is not a true “criminal
prosecution” protected by the Sixth Amendment.
Community Supervision is not a right.
In a typical criminal prosecution, the defendant is accused of a criminal offense
and stands to lose a significant liberty interest if found guilty beyond a reasonable
doubt. The liberty interest in question is not an interest awarded to him by law, but
one that is naturally his by constitutional default. See Gagnon v. Scarpelli, 411 U.S.
778, 781-82 (1973) (finding federal probation revocation is not a stage of criminal
prosecution after the similarity to parole: “Revocation [of parole] deprives an
individual, not of the absolute liberty to which every citizen is entitled, but only of
the conditional liberty properly dependent on observance of special parole
restrictions.” (quoting Morrissey v. Brewer, 408 U.S. 471, 480 (1972)).
However, community supervision (which includes deferred adjudication) is a
“privilege, not a right.” Speth v. State, 6 S.W.3d 530, 533 (Tex. Crim. App. 1999).
“The decision whether to grant probation is wholly discretionary and
nonreviewable.” Speth, 6 S.W.3d at 533 (citing Flourney v. State, 589 S.W.2d 705, 707
(Tex. Crim. App. 1979)). The trial court is essentially extending “clemency” to the
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defendant when granting community supervision. Id. (citing Wilson v. State, 240
S.W.2d 774, 775 (Tex. Crim. App. 1951)); Escoe v. Zerbst, 295 U.S. 490, 492-93 (1935)
(stating that probation is an “act of grace”). This clemency is contractually extended
if the convicted person “keep[s] and perform[s] certain requirements and conditions,
the violation of which will authorize the revocation of the probation.” Speth, 6 S.W.3d
at 533. Thus, when probation is revoked, the court is only withdrawing a clemency or
privilege it always had the discretion to give—and not the deprivation of a right.
Nevertheless, a hearing on the State’s motion to enter adjudication of guilt and
revoke community supervision differs from typical federal probation revocation
proceedings. As allowed by statute, Texas judges have discretion to withhold a
finding of guilt by granting deferred adjudication. TEX. CODE CRIM. PROC., art.
42A.053; art. 42A.001.
Once the plea proceeding has concluded, however, the gravamen of any
motion to enter an adjudication of guilt followed by a revocation of probation is
different. The trial court focuses on whether the defendant failed to perform the
terms of his agreement. If the trial court finds a violation of the terms of his
agreement, the trial court decides whether to enter a finding of guilt. Unlike the
protections guaranteed in a criminal case, the burden of proof is by a preponderance
of the evidence. Cobb v. State, 851 S.W.3d 871, 873 (Tex. Crim. App. 1993).
8
Furthermore, that burden can be met using relaxed evidentiary rules. See id. (finding
formal proof of probation documents not necessary in a revocation proceeding
because of the hearing’s administrative nature). If the judge finds any of the
allegations to be true, the judge may “proceed to dispose of the case as if there had
been no community supervision [such as deferred adjudication].” TEX. CODE CRIM.
PROC. art. 42A.755 (a)(1). Thus, a defendant does not enjoy the same protections in
a motion to enter adjudication of guilt as a defendant entering a plea of not guilty and
demanding a trial.
Conclusion
We agree with the court of appeals below. The trial court did not err in
overruling Appellant’s objection under the Confrontation Clause because it did not
apply to an adjudication of guilt and probation revocation hearing. Thus, we affirm.
Filed: July 2, 2026
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