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
Finley, J., filed a dissenting opinion.
DISSENTING OPINION
Appellant pleaded guilty to evading arrest and theft and pleaded true to a prior
felony conviction. The trial court deferred guilt and placed Appellant on ten years’
deferred adjudication community supervision. The State later filed a motion to
proceed with Appellant’s adjudication. Appellant objected to proceeding with the
MONTGOMERY DISSENT — 2
adjudication hearing via Zoom, arguing that the Zoom adjudication hearing would
violate his Sixth Amendment right to confront witnesses. The trial court overruled
his objections. At the Zoom hearing, the State called four witnesses. The trial court
found the State’s allegations true, adjudicated guilt, and sentenced Appellant to
twenty years’ confinement for each offense.
The question before the Court is whether Appellant enjoyed a Sixth
Amendment right to confront witnesses when the trial court held a virtual hearing
on the State’s motion to adjudicate. The court of appeals below concluded that the
“Confrontation Clause is inapplicable to a revocation proceeding.” Montgomery v.
State, No. 02-21-00002-CR, 2022 WL 5240472, at *6 (Tex. App.—Fort Worth Oct.
6, 2022) (mem. op., not designated for publication). We granted Appellant’s petition
for discretionary review to resolve a split of authority in the lower courts of this State.
“The Confrontation Clause of the Sixth Amendment provides that ‘[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him. . . .’” Woodall v. State, 336 S.W.3d 634, 641 (Tex. Crim. App.
2011) (quoting U.S. Const. amend. VI). Barring some exceptions, the admission
of testimonial, out-of-court statements from a non-testifying witness violates the
Confrontation Clause. Davis v. Washington, 547 U.S. 813, 821 (2006); Crawford v.
Washington, 541 U.S. 36, 68 (2004).
MONTGOMERY DISSENT — 3
In 1971, this Court held that “[a] probation revocation hearing is not an
adversarial proceeding, a civil action, or a criminal prosecution[;] instead, it is
administrative in nature, a means of protecting society and rehabilitating
lawbreakers.” Hill v. State, 480 S.W.2d 200, 202–03 (Tex. Crim. App. 1971) (op. on
reh’g) (citations omitted). In 1972, in Morrissey v. Brewer, 408 U.S. 471 (1972), the
Supreme Court of the United States held that the revocation of parole in the federal
sphere is not a stage in a criminal prosecution, reasoning that “[p]arole arises after
the end of the criminal prosecution, including imposition of sentence. . . . Revocation
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.” Morrissey, 408 U.S. at 480. The next year, in Gagnon v. Scarpelli, 411
U.S. 778 (1973), the Supreme Court held that federal probation revocation, “like
parole revocation, is not a stage of a criminal prosecution,” emphasizing “that
revocation of probation where sentence has been imposed previously is
constitutionally indistinguishable from the revocation of parole.” Id. at 782 & n.4
(citing Van Dyke, Parole Revocation Hearings in California: The Right to Counsel, 59
Calif. L. Rev. 1215, 1241–43 (1971)).
MONTGOMERY DISSENT — 4
But the revocation of probation is noticeably different than a defendant’s
status on deferred adjudication. As we explained in Middleton v. State, 634 S.W.3d
46 (Tex. Crim. App. 2021):
To be placed on deferred adjudication, a defendant pleads guilty, but
the trial court does not make a finding of guilt; rather the trial court
finds that the “evidence . . . substantiates the defendant’s guilt [and]
defers further proceedings without entering an adjudication of guilt.”
The wording of the statute seems to contemplate a pause, as if the case
were taken under advisement. During this pause, the defendant is given
the opportunity to complete a probationary period in compliance with
conditions, and if he succeeds, then the charges will be dismissed. If he
fails, and the trial judge later finds a violation of probation and decides
to adjudicate guilt, the proceedings continue where they left off: “After
an adjudication of guilt, all proceedings, including the 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.” For most purposes, a deferred
adjudication does not count as a conviction.
Id. at 50 (internal footnotes omitted). No conviction—or sentence—is imposed in a
deferred adjudication case. As we noted in Middleton, deferred adjudication simply
serves as a “pause” in proceedings. 634 S.W.3d at 50. Charges are dismissed if
deferred adjudication is successfully completed. Id.; see also Tex. Code Crim.
Proc. art. 42A.111. Necessarily, hearings to adjudicate guilt are a continuation of
the criminal proceedings that preceded them. Unless and until guilt is adjudicated
and a sentence is imposed, a defendant continues to enjoy the full panoply of rights
provided by the United States Constitution.
MONTGOMERY DISSENT — 5
In any event, reliance on federal case law is misplaced. 1 This is not a federal
case. This is Texas. The seminal Texas case on point is Ex parte Doan, 369 S.W.3d
205 (Tex. Crim. App. 2012). 2 In Doan, the “issue [was] whether the doctrine of res
judicata applie[d] to bar a prosecution for a criminal offense in one county after a
prosecutor in another county unsuccessfully attempted to revoke the defendant’s
community supervision on the ground that he committed the same offense.” Id. at
205–06.
Obviously, this is not a res judicata case. Cf. ante at 3 (Keel, J., concurring)
(“Moreover, Ex parte Doan is irrelevant. It says nothing about the applicability of the
Confrontation Clause to adjudication hearings.”). But Doan’s discussion of Texas
revocation proceedings is important to today’s case. This Court observed the
following about Hill:
1
Faithfully applying Scarpelli, every federal circuit court of appeals has held that the Sixth
Amendment does not apply in hearings for the revocation of federal supervised release, probation,
or parole. See, e.g., United States v. Rondeau, 430 F.3d 44, 47 (1st Cir. 2005); United States v.
Peguero, 34 F.4th 143, 154 (2d Cir. 2022); United States v. Lloyd, 566 F.3d 341, 343 (3d Cir. 2009);
United States v. Kissi, 543 F. App’x 293, 295 (4th Cir. 2013); United States v. Grandlund, 71 F.3d
507, 510 (5th Cir. 1996); United States v. Kirby, 418 F.3d 621, 627–28 (6th Cir. 2005); United States
v. Perez, 99 F.4th 972, 976 (7th Cir. 2024); United States v. Ray, 530 F.3d 666, 668 (8th Cir. 2008);
Valdivia v. Schwarzenegger, 599 F.3d 984, 989 (9th Cir. 2010); United States v. Williams, 106 F.4th
1040, 1045 (10th Cir. 2024); United States v. Reese, 775 F.3d 1327, 1329 (11th Cir. 2015); Ash v.
Reilly, 431 F.3d 826, 829–30 (D.C. Cir. 2005).
2
The Court does not address Doan, even while recognizing that “a hearing on the State’s motion
to enter adjudication of guilt and revoke community supervision differs from typical federal
probation revocation proceedings.” Ante at 7 (Court’s Op.).
MONTGOMERY DISSENT — 6
We have stated more than once that revocation proceedings are
“administrative in nature.” We began using the label as a result of
confusion about federal law, and we have expanded on that confusion
over the years. Using the word “administrative” became a way of
stating that defendants in revocation hearings do not enjoy the same
panoply of procedural rights as defendants in criminal trials. This is
true, as far as it goes, but our characterization of a judicial proceeding
as an administrative proceeding is, on its face, inaccurate. Moreover,
we have used the “administrative” label to imply that we would not
strictly enforce procedural rules at revocation hearings, which was an
injudicious and inaccurate implication.
Id. at 208 (internal footnote omitted). This Court compared Texas proceedings with
the federal proceedings in Scarpelli. In Scarpelli, the Supreme Court of the United
States observed that a federal probation-revocation hearing is unlike
[a] criminal trial, [in which] the State is represented by a prosecutor;
formal rules of evidence are in force; a defendant enjoys a number of
procedural rights. . . . In short, a criminal trial under our system is an
adversary proceeding with its own unique characteristics. In a
revocation hearing, on the other hand, the State is represented, not by
a prosecutor, but by a parole officer with the orientation [toward
rehabilitation]; formal procedures and rules of evidence are not
employed; and the members of the hearing body are familiar with the
problems and practice of probation or parole.
411 U.S. at 789. But in Texas, procedures are far different:
[T]he State is represented by a prosecutor, the defendant does have a
right to counsel, the hearing is before the judge, formal rules of evidence
do apply, and there may be appeal directly to a court of appeals. They
are conducted entirely within the judicial branch. The Rules of
Evidence and the exclusionary rule to bar illegally seized evidence apply
fully in a Texas probation revocation hearing. Indeed, aside from the
burden of proof required to prove a community-supervision violation
MONTGOMERY DISSENT — 7
(preponderance of the evidence, which is lower than the burden of
proof beyond a reasonable doubt that is required to prove a new criminal
offense), there are few procedural differences between a Texas criminal
trial and a Texas community-supervision revocation proceeding.
Doan, 369 S.W.3d at 210 (internal footnotes omitted). Consequently, we concluded:
A Texas community-supervision revocation proceeding involves the
application of law to past facts that remain static. It is conducted
according to judicial rules before a trial judge, not an administrative
agency. Applying administrative law—the law that governs the
decision-making processes of administrative agencies—to revocation
hearings has no basis in the Code of Criminal Procedure. Community-
supervision revocation proceedings are not administrative hearings; they are
judicial proceedings, to be governed by the rules established to govern judicial
proceedings.
Id. at 212 (emphasis added).
Judge Keel posits that the Confrontation Clause does not apply because
“the respondent to the motion to adjudicate is not ‘accused[.]’” Ante at 1–2 (Keel,
J., concurring). But contrary to Judge Keel’s assertion, a defendant placed on
deferred adjudication remains “accused” because they are not yet convicted. Two
months ago, this Court recognized in State v. McDonald that the Sixth Amendment
right to counsel terminates upon the dismissal of a defendant’s charges. — S.W.3d
—, 2026 WL 1025753, at *6 (Tex. Crim. App. Apr. 16, 2026). This was so because
the dismissal of charges terminates the “adversarial process.” Id. at *4. But in the
context of deferred adjudication probation, the “adversarial process” is not
MONTGOMERY DISSENT — 8
terminated. The defendant is not yet convicted and the State most definitely remains
“adversarial” to the defendant.
Nor does Ex parte Zubiate change the analysis. See ante at 2 (Keel, J.,
concurring) (citing 710 S.W.3d 724, 726–27 (Tex. Crim. App. 2025)). Zubiate was a
parole revocation case, a proceeding markedly different from deferred adjudication.
Moreover, the Supreme Court of the United States has already foreclosed the
applicability of the Confrontation Clause to parole revocation hearings. Morrisey, 408
U.S. at 480; see also Zubiate, 710 S.W.3d at 728 (Newell, J., concurring). As such,
Zubiate is inapplicable to this case.
Judge Keel also argues that because “[t]he 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.” Id. at 2 (citing Cruz v. New York, 481 U.S. 186, 190 (1987)).
But this is simply incorrect. Evidence at an adjudication hearing is offered to secure
a conviction because the trial court can, should it find violations of community
supervision, convict the defendant of the offense for which the defendant was placed
on deferred adjudication. See Tex. Code Crim. Proc. arts. 42A.108(b),
42A.110.
MONTGOMERY DISSENT — 9
Moreover, to the extent that Judge Keel and Judge Parker equate
adjudication hearings—where the defendant has not yet been convicted—with
“sentencing,” this distinction affects other facets of the law. See ante at 2 (Keel, J.,
concurring) (“[t]he defendant at an adjudication hearing is not ‘accused’ of the
crime . . . [h]e 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.”); see also ante at 4 (Parker, J., concurring). Consider,
for example, a defendant’s right to cross-examine a witness about prior convictions.
Under Texas Rule of Evidence 609(c), “when the probationary term has expired [or
probation was satisfactorily completed] and the witness has not been subsequently
convicted of a felony or crime involving moral turpitude, the prior conviction is not
admissible for impeachment purposes.” Ex parte Menchaca, 854 S.W.2d 128, 131
(Tex. Crim. App. 1993) (citing Tex. R. Evid. 609(c)). But Rule of Evidence 609
does not permit—nor has this Court ever recognized—cross-examination of a
witness’s satisfactorily completed deferred adjudication probation. In fact, when it
comes to deferred adjudication probation, a witness can only be cross-examined
about their deferred adjudication status if the proponent can show a logical
connection between the witness’s testimony and the witness’s probationary status.
Irby v. State, 327 S.W.3d 138, 146, 154 (Tex. Crim. App. 2010). If indeed defendants
MONTGOMERY DISSENT — 10
on deferred adjudication who are not yet adjudicated stand on the same footing as
convicted defendants in revocation proceedings (or, as Judge Parker argues,
convicted defendants simply being sentenced), then it might follow that cross-
examination for deferred status—past and present—is permissible. So long as the
distinction on cross-examination between probation statuses remains the same, the
solution to this implicit tension is to recognize that there is a distinction between
deferred status in an adjudication hearing and revocation or sentencing: When a
defendant is not yet convicted, as in the “pause” of deferred adjudication, the full
panoply of constitutional rights applies.
One final point: In Middleton, this Court described deferred adjudication as a
“pause” in proceedings. 634 S.W.3d at 50. If that is the case, when and where is the
“play” button? The Court and my colleagues with concurring opinions certainly
seem not to believe that the adjudication hearing is the “play” button. But once a
defendant is adjudicated and sentenced, proceedings are over. It would seem as
though the “pause,” if the Court were to be right, was not a “pause” at all but rather
a stop sign. But we know that premise cannot be true. Rather, the simple solution is
to recognize that the State’s motion to adjudicate serves as the “play” button,
restarting adversarial proceedings that carry with them Confrontation Clause
protections.
MONTGOMERY DISSENT — 11
Doan’s mandate is clear: “Community-supervision revocation proceedings
. . . are judicial proceedings, to be governed by the rules established to govern judicial
proceedings.” 369 S.W.3d at 212. And there is no meaningful distinction between
the term “criminal prosecutions” as it appears in the Sixth Amendment, see U.S.
Const. amend. VI, and Doan’s use of the term “judicial proceedings,” 369 S.W.3d
at 212. For example, this Court has recognized that the Sixth Amendment right to
counsel applies to adjudication hearings. Parker v. State, 545 S.W.2d 151, 155 (Tex.
Crim. App. 1977). This was so because “revocation proceedings cannot be isolated
from the context of the criminal process.” Id. In fact, this Court in Parker cited to
Fariss v. Tipps, 463 S.W.2d 176 (Tex. 1971), which held that revocation is a “criminal
prosecution” within Article I, Section 10, of the Texas Constitution. 545 S.W.2d at
155 (first citing Fariss; then citing Ex parte Williams, 414 S.W.2d 472 (Tex. Crim.
App. 1967)).
In sum, the Sixth Amendment’s Confrontation Clause applies to deferred
adjudication probation hearings for two reasons. First, deferred adjudication is
unlike probation revocation because a sentence has not yet been imposed at the time
of the adjudication hearing. See Middleton, 634 S.W.3d at 50. Second, as we explained
in Doan, Texas “[c]ommunity-supervision revocation proceedings . . . are judicial
proceedings, to be governed by the rules established to govern judicial proceedings.”
MONTGOMERY DISSENT — 12
369 S.W.3d at 212. I would reverse the judgment of the court of appeals and remand
for consideration of the merits of Appellant’s Confrontation Clause claim. I
respectfully dissent.
Filed: July 2, 2026
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