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
PARKER, J., filed a concurring opinion in which SCHENCK, P.J.,
and KEEL, J., joined.
CONCURRING OPINION
Does the Sixth Amendment’s Confrontation Clause apply to a proceeding
involving the revocation of deferred adjudication? The Court says it doesn’t
because it is a proceeding to revoke probation and the Confrontation Clause
doesn’t apply to such proceedings. The dissent says it does because the
MONTGOMERY CONCURRENCE — 2
proceedings are judicial in character and sentencing hasn’t been decided. Neither
answer is entirely satisfying. The Court does not grapple with the differences
between deferred adjudication and regular probation, and there are differences,
with the most salient one being that sentencing hasn’t occurred yet. The dissent
sees the sentencing distinction but assumes without critical inquiry that the
Confrontation Clause applies to sentencing. But contrary to that assumption, the
Supreme Court has suggested and the federal circuits have unanimously concluded
that the Confrontation Clause does not apply to sentencing. Based mainly on that
authority, I agree with the Court that the Confrontation Clause does not apply to
proceedings involving the revocation of deferred adjudication.
1. The “judicial” character of the proceedings is immaterial.
One of the dissent’s rationales for finding the Confrontation Clause
applicable is that, in Texas, proceedings involving the revocation of deferred
adjudication are “judicial” rather than “administrative.” While I agree that such
proceedings are “judicial” in this state, so are proceedings involving the revocation
of regular probation. The Doan case the dissent relies upon made no distinction
between deferred adjudication and “regular” probation in arriving at its holding.1
1
See Ex parte Doan, 369 S.W.3d 205, 206 & passim (Tex. Crim. App. 2012) (referring to
“community supervision” with no mention of deferred adjudication).
MONTGOMERY CONCURRENCE — 3
Yet the dissent does not appear to be arguing that we should apply the
Confrontation Clause to regular probation-revocation proceedings, and in fact the
dissent points to the unanimity of federal-circuit decisions that the Confrontation
Clause does not apply to such proceedings. If the dissent’s point is to distinguish
between the two types of proceedings (revocation of regular probation versus
revocation of deferred adjudication), this particular claim utterly fails to support
that point.
Setting this lack-of-distinction aside, I cannot agree that Texas’s decision to
accord more protections to these types of proceedings under state law has anything
to do with the application of federal constitutional protections. Whether federal
confrontation rights apply ought to be decided by what is at stake for the defendant
in a particular proceeding, not by a state’s decision, as a matter of legislative grace,
to provide more protections in such a proceeding. And all three of the cases relied
upon by the dissent on this subject—Doan, Parker, and Fariss—involved
constructions of protections provided by state law, not federal law.2
2
Doan, 369 S.W.3d at 213 (acknowledging that the federal double-jeopardy clause did not
apply and that only state-law “res judicata” protections were at issue); Parker v. State, 545
S.W.2d 151, 155 (Tex. Crim. App. 1977) (referring to the holding in Fariss, infra “that revocation
is a ‘criminal prosecution’ within Article I, Sec. 10, Texas Constitution” and also citing the
probation statute); Fariss v. Tipps, 463 4 S.W.2d 176 (Tex. 1971) (addressing the “question under
the state constitutional provision . . .whether a proceeding for revocation of probation is a
‘criminal prosecution’ to which the constitutional guarantees apply”) (ellipsis inserted).
MONTGOMERY CONCURRENCE — 4
Moreover, even if we accept Doan’s generic pronouncement that probation-
revocation proceedings “are judicial proceedings, to be governed by the rules
established to govern judicial proceedings,”3 this pronouncement says nothing
about the application of the Confrontation Clause if we determine that it doesn’t
apply to some judicial proceedings, such as pre-trial or post-trial hearings, hearings
regarding the revocation of “regular” probation, or—as I will soon discuss—
sentencing proceedings.
2. The Confrontation Clause does not apply to sentencing.
There are two salient characteristics of deferred adjudication that do not
apply to regular probation: (1) the defendant is not formally found guilty, and (2)
sentencing has not yet occurred.4 I will address the question of sentencing first.
Similarly, the dissent emphasizes that a deferred adjudication does not count as a
conviction for purposes of state law when it comes to impeachment under the Texas Rules of
Evidence. But the federal constitution does not prevent the State from treating a deferred
adjudication as a conviction for that purpose if it so desired. And as explained infra at part 3,
deferred adjudication is treated as a conviction for some purposes.
3
Doan, 369 S.W.3d at 212.
4
See TEX. CODE CRIM. PROC. arts. 42A.101(a) (providing that “the judge may, after
receiving a plea of guilty or nolo contendere, hearing the evidence, and finding that it
substantiates the defendant’s guilt, defer further proceedings without entering an adjudication of
guilt and place the defendant on deferred adjudication community supervision”), 42A.110(a)
(“After an adjudication of guilt, all proceedings, including assessment of punishment,
pronouncement of sentence, granting of community supervision, and defendant’s appeal,
continue as if the adjudication of guilt had not been deferred.”).
MONTGOMERY CONCURRENCE — 5
The United States Supreme Court has already held that the full protections of the
Confrontation Clause do not apply to sentencing. In 1949, in Williams v. New York,
the Court pointed to the “wide discretion” of sentencing courts and their ability to
use out-of-court affidavits:
But both before and since the American colonies became a nation,
courts in this country and in England practiced a policy under which a
sentencing judge could exercise a wide discretion in the sources and
types of evidence used to assist him in determining the kind and
extent of punishment to be imposed within limits fixed by law.
Out-of-court affidavits have been used frequently, and of course in the
smaller communities sentencing judges naturally have in mind their
knowledge of the personalities and backgrounds of convicted
offenders.5
A decade later, the Supreme Court reaffirmed that practice, citing only due process
as a limitation on the ability to consider evidence at sentencing:
[O]nce the guilt of the accused has been properly established, the
sentencing judge, in determining the kind and extent of punishment to
be imposed, is not restricted to evidence derived from the examination
and cross-examination of witnesses in open court but may,
consistently with the Due Process Clause of the Fourteenth
Amendment, consider responsible unsworn or ‘out-of-court’
information relative to the circumstances of the crime and to the
convicted person’s life and characteristics.6
The question is whether those old holdings have survived more recent
5
337 U.S. 241, 246 (1949).
6
Williams v. Oklahoma, 358 U.S. 576, 584 (1959).
MONTGOMERY CONCURRENCE — 6
developments in constitutional law, especially the Court’s confrontation decision
in Crawford v. Washington.7 The federal circuits have been unanimous in holding
that they have, concluding that the Sixth Amendment’s Confrontation Clause does
not apply to non-capital sentencing proceedings.8
3. Deferred-adjudication revocation proceedings do not involve
any substantial issues of guilt, and so the right to confrontation
does not apply.
What is left is the fact that a formal entry of guilt is not made until deferred
adjudication is revoked.9 As the Supreme Court has indicated, the federal
constitutional right to confrontation ends “once the guilt of the accused has been
properly established.”10 In the deferred-adjudication setting, guilt of the defendant
has been “properly established” at the time he is placed on deferred adjudication,
7
541 U.S. 36 (2004).
8
United States v. García-Oquendo, 144 F.4th 66, 76 (1st Cir. 2025) (citing United States v.
Luciano, 414 F.3d 174, 179 (1st Cir. 2005)); United States v. Martinez, 413 F.3d 239, 242–44 (2d
Cir. 2005); United States v. Smith, 751 F.3d 107, 116 (3d Cir. 2014) (citing United States v.
Robinson, 482 F.3d 244, 246 (3d Cir.2007)); United States v. Powell, 650 F.3d 388, 391–94 (4th
Cir. 2011); United States v. Beydoun, 469 F.3d 102, 108 (5th Cir. 2006); United States v. Stone,
432 F.3d 651, 654 (6th Cir. 2005); United States v. Roche, 415 F.3d 614, 618 (7th Cir. 2005);
United States v. Brown, 430 F.3d 942, 943–44 (8th Cir. 2005); United States v. Vera, 893 F.3d 689,
692 (9th Cir. 2018) (citing United States v. Littlesun, 444 F.3d 1196, 1199–1200 (9th Cir. 2006));
United States v. Battles, 745 F.3d 436, 461-62 (10th Cir. 2014) (citing United States v. Bustamante,
454 F.3d 1200, 1202–03 (10th Cir. 2006)); United States v. Cantellano, 430 F.3d 1142, 1146 (11th
Cir. 2005); United States v. Bras, 483 F.3d 103, 109 (D.C. Cir. 2007).
9
See supra at n.4.
10
Williams, 358 U.S. at 584.
MONTGOMERY CONCURRENCE — 7
which occurs after he pleads guilty (or nolo contendere) and the judge finds that
the evidence “substantiates” guilt.11
And when the State seeks revocation, it does so on the basis of a violation of
the conditions of supervision.12 Guilt is not an issue that is revisited during a
revocation proceeding. And in fact, the original plea proceedings cannot be
reviewed in an appeal from revocation, except when the original judgment was
void.13
Moreover, though the defendant has an opportunity to prevent a conviction
from appearing on his record—for most purposes—by successfully serving out his
period of supervision, “most” is not “all,” and agreeing to deferred adjudication
11
See supra at n. 4 (citing and quoting TEX. CODE CRIM. PROC. arts. 42A.101(a)).
12
See TEX. CODE CRIM. PROC. art. 42A.108(a) (“On violation of a condition of deferred
adjudication community supervision . . .”).
13
See TEX. CODE CRIM. PROC. art. 42A.108(b) (“The determination to proceed with an
adjudication of guilt on the original charge is reviewable in the same manner as a revocation
hearing conducted under Article 42A.751(d) in a case in which the adjudication of guilt was not
deferred.”); Nix v. State, 65 S.W.3d 664, 667-68 (Tex. Crim. App. 2001).
Relying upon Middleton’s statement that deferred adjudication contemplates “a pause, as
if the case were taken under advisement,” see Middleton v. State, 634 S.W.3d 46, 50 (Tex. Crim.
App. 2021), the dissent claims that, upon a motion to adjudicate, proceedings are restarted with
confrontation protections. But once a case is taken under advisement, a party no longer has the
unfettered ability to withdraw his plea. Murray v. State, 302 S.W.3d 874, 883 (Tex. Crim. App.
2009) (But he can do so on the basis that the plea is invalid.). If the plea cannot be withdrawn at
the defendant’s own discretion, then the defendant’s guilt has been established. To use the
dissent’s “pause-play” analogy, the “pause” happened at the moment Appellant’s guilt was
established, so that resumed proceedings occurring on pressing “play” were not covered by the
right to confrontation.
MONTGOMERY CONCURRENCE — 8
has some lasting consequences: (1) for use to enhance certain sex offenses if the
deferred adjudication is for an applicable sex offense, (2) for admission at the
punishment stage of a subsequent offense, and (3) for consideration in obtaining or
renewing certain types of licenses.14
Consequently, there is no substantial issue as to guilt in deferred-
adjudication revocation proceedings. The issues are whether to revoke and
punishment. Neither of those issues implicate the Sixth Amendment’s guilt-
centered right to confrontation.
With these comments, I join the Court’s opinion.
Filed: July 02, 2026
Publish
14
See TEX. CODE CRIM. PROC. art. 42A.111(c), (d); TEX. PENAL CODE § 12.42(g)(1).