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
ON APPELLANT=S PETITION FOR DISCRETIONARY REVIEW
FROM THE SECOND COURT OF APPEALS
TARRANT COUNTY
KEEL, J., filed a concurring opinion in which SCHENCK, P.J., and
YEARY and PARKER, JJ., joined.
CONCURRING OPINION
Does the Sixth Amendment’s Confrontation Clause apply to adjudication
hearings? No. I agree with the majority and join its opinion because an adjudication
hearing is not a “criminal prosecution,” regardless of its outcome, and the
respondent to the motion to adjudicate is not “accused,” and the witnesses at the
Montgomery Concurrence—Page 2
hearing are not “against” him. See generally Ex parte Zubiate, 710 S.W.3d 724, 726-
27 (Tex. Crim. App. 2025) (discussing inapplicability of Confrontation Clause to
parole hearing).
The evidence at an adjudication hearing is offered to assess the defendant’s
performance on probation and not to establish guilt for a charged offense, so the
hearing is not a criminal trial, and the evidence is not offered “against” the
defendant in the ordinary sense of the Confrontation Clause. Cf. Cruz v. New York,
481 U.S. 186, 190 (1987) (noting that a witness whose testimony pertains to guilt is
ordinarily considered a witness “against” an accused). Furthermore, the defendant
at an adjudication hearing is not “accused” of the crime for which he is on
community supervision. He lost the presumption of innocence when (1) he
judicially confessed to it, and (2) the trial court found that the evidence
substantiated his guilt. After that, his liberty is conditional. Tex. Code Crim. Proc.
art. 42A.101(a); see McNew v. State, 608 S.W.2d 166, 176 (Tex. Crim. App. [Panel
Op.] 1978) (op. on reh’g) (concluding that deferred adjudication “is a
constitutional form of ‘probation’” under Tex. Const. art. III, § 1); Morrissey v.
Brewer, 408 U.S. 471, 480 (1972) (holding that parole revocation hearings are not
criminal prosecutions because, among other things, revocation deprives the
Montgomery Concurrence—Page 3
defendant of only conditional liberty); Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973)
(extending Morrissey’s reasoning and holding to probation revocation hearings).
Moreover, Ex parte Doan is irrelevant. It says nothing about the applicability
of the Confrontation Clause to adjudication hearings. See Ex parte Doan, 369
S.W.3d 205, 212 (Tex. Crim. App. 2012). It asked whether res judicata—a Fifth
Amendment concept—barred “a prosecution for a criminal offense in [Travis]
county after a prosecutor in [Brazos]- county” tried but failed to revoke the
defendant’s community supervision for commission of the Travis County crime.
Id. at 205–06. It decided the issue on state law grounds rather than federal
constitutional considerations. Id. at 212–13. Its conceptual underpinnings were
unclear. See id. at 221–23 (Keller, P.J., dissenting). But whatever they were, Doan
had nothing to say about confrontation.
The singular issue here is the applicability of the Confrontation Clause to
adjudication hearings. It does not apply. And the hearing’s outcome—whether
revocation of community supervision or something else—is immaterial to the
analysis.
Filed: July 2, 2026
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