Opinion

MONTGOMERY, BEECHER v. the State of Texas

Court
Court of Criminal Appeals of Texas
Filed
Jul 2, 2026
Status
Published
Nature of suit
PDR Case Type
Cited by
0 cases
Authority
More cited than 41.5%

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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