Petition for Writ of Certiorari — Beecher Montgomery, Petitioner v. Texas

No.

In the

Supreme Court of the United States

Beecher Montgomery,

Petitioner, .

v.

The State of Texas,

- Respondent.

On Petition for a Writ of Certiorari

to the Supreme Court of the United States

PETITION FOR A WRIT OF CERTIORARI

Matthew J. Smid

Law Office of Matthew J. Smid, PLLC

301 Commerce Street, Suite 2001

Fort Worth, Texas 76102

Telephone: (817) 332-3822

Facsimile: (817) 332-2763

E-mail: matt@mattsmidlaw.com

Texas State Bar No. 24063541

QUESTION PRESENTED

Does the Sixth Amendment right to confront witnesses apply at a hearing to

adjudicate a criminal defendant guilty when the defendant enters the hearing

unconvicted and the State presents evidence at the hearing for the purpose of

convincing the trial court to convict the defendant?

PARTIES TO THE PROCEEDING

Petitioner is Beecher Montgomery, who was the Defendant-Petitioner in the

court below. Respondent, the State of Texas, was the Plaintiff-Appellee in the court

below.

rat

TABLE OF CONTENTS

QUESTION PRESENTED..00.... ee ecccecccscescsscssceseceseesssssssccsscssesssecsscsseseeesseseesessestessecsecaees

PARTIES TO THE PROCEEDING .00....cccccccccccsssssssccsssscessescssessesseccsecaceaceecseeaeesesaeees il

INDEX TO APPENDICES 0.00... ccc ceececscsscsscesessscesessecssssssssseccevsccsssacacesesseessesesaceaacaseas Vv

TABLE OF AUTHORITIES Woo. ccesseseccesccscesccscsscsscsscsccsscssescessesscseceecasaesaensearens V1

PETITION FOR A WRIT OF CERTIORARI ieeeneeseseececeesessececosssessssenaeeseeeeseeceseseesennaas 1

OPINIONS BELOW 000... ececcsccsssssessesenccesesecssessssscsssssssecssssssecsevaceuscaeacsssssessuaseneeasens 1

JURISDICTION occ eeeceeeseesecsessessecccssscssssscsscsuscsscssssscsaesesenseasenesaceaesaesauesaaees 1

STATUTORY AND RULES PROVISIONS.........ccccccccccscscescsssseseceecescseeseseeecsssecaceees 1

STATEMENT OF THE CASE 000... .cccccccccsccsccsscescsssessesccsssescscsecsscesceacesessesaecascsecaecaacees 2

REASONS FOR GRANTING THIS PETITION

In a 5-4 decision, the Texas Court of Criminal

Appeals decided that citizens accused of criminal

offenses do not have a right to confront witnesses

against them at hearings to adjudicate their guilt,

despite the fact that; 1) the accused walks into that

hearing having not been convicted of a crime 2) the

judge presiding at the hearing can take dispositive

actions on the case ranging from an outright

dismissal of the case to convicting the defendant, 3)

the State presents evidence at the hearing for the

sole purpose of convincing the judge to convict the

defendant of a crime, and 4) the court must weight

evidence presented at the hearing in making his

determination of whether or not to convict the

defendant of a crime. When a defendant goes on

deferred adjudication the criminal prosecution is

paused. The prosecution of the defendant resumes

when the State files a petition to adjudicate the

defendant guilty. The CCA’s opinion sets a

dangerous precedent, which seemingly allows the

Government to present evidence at the hearing

without live witness testimony. The CCA’s ruling

will allow the Government to convince the court to

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CONCLUSION

finally convict a defendant based on statements

made outside of court, without an opportunity for

the defendant or his attorney to cross-examine that

witness. Meanwhile, a defendant at such a hearing

enjoys every other constitutional right including the

Fourth Amendment right against unreasonable

searches and seizures, the Fifth Amendment right

against’ self-incrimination, and the Sixth

Amendment right to counsel. This ruling deprives

Texas citizens of their right to confront witnesses at

a critical stage of the criminal prosecution—perhaps

the most critical—the stage in which they are

convicted Of & CLIME..............cc ce ccecscscececucuceuscceececuces 7

iv

SOMOHCOH FG OT TOS SSEFO HOHE DESH TOR SATHEO HETERO ATTA SEEETO ETE TOE TTOROHHES HHO OOTH RTO COSHH OSSEEDER OED OR2500

Appendix A —

Appendix B —

Appendix C —

Appendix D —

INDEX TO APPENDICES

Judgment and Opinion of the Texas Court of Criminal Appeals

Judgments and Sentences of the 3964 Judicial District Court of

Tarrant County, Texas

Oral Orders denying Petitioner’s objections to conduct hearing to

adjudicate guilt virtually.

Written Objection to Virtual Proceeding

Table of Authorities

Caldwell v. Quaterman, 549 U.U. 970 (2005) (Denying Cert)...........cccceecesceeeees 11,12

California v. Green, 399 U.S. 149 (1970)...... ccc ccccceccscececececeeeusceuscesesccesueeeesseuesens 19

Crawford v. Washington, 541 U.S. 36 (2004).........ccccccccececeuecscescescnceenueceesecenesens 13

Davis v. Alaska, 415 U.S. 308 (1974)........cccccccccsececcesecsuceceascencteessneeeeetecsesnesenes 19

Davis v. Washington, 547 U.S. 818 (2006)... ... ccc ccccccsecccscecceecsscesccseeceseueceacessesess 13

Ex Parte Doan, 369 S.W.3d 205 (Tex. Crim. App. 2012)..........ccccccscceeescceceeececeeens 11

ix Parte Shivers, 501 S.W.2d 898 (Tex. Crim. App. 19738)..........cccsccceescecscececceusass 18

Gagnon v. Scarpelli, 411 U.S. 778 (19738).......cccccseccectcsccccuctaesseneceusseenenecs 4,10,11,17

Illinois v. Allen, 397 U.S. 837 (1970).......cccccccceecccccceceseceseeseeusceeceaecesaeceneeaeusuaens 19 |

Middleton U. State, 634 S.W.3d 46 (Tex. Crim. App.

QO2Z1)...ccecscsscccnescnveceseneeeetenseeseceeeeeeneeseeeeesessesaeseeeseeeseeseeeeteceseseseucucesesueceses 9,13

Moore v. State, 562 S.W.2d 484 (Tex.Crim.App. 1978)........cccccccseeescceecscsceeseecuaeces 17

Morrissey v. Brewer, 408 U.S. 471 (1972).......ccccccccccccscessccncccassuccsscesseuetescecees 10,11

Monigomery v. State, Nos. PD-0581-22 & PD0582-22, 2026 WL 1899378 (Tex. Crim.

App. July 2, 2026)........ccececesccccconcnsancnectensestesseceescesensseeeenssesususeuss 1,4,5,13,14,15

Montgomery v. State, No. 02-21-00002-CR, 2022 Tex. App LEXIS 7440 (Tex. App.—

Fort Worth, October 6, 2022)..........cccccccccccusccsccscescusnasscsaccasnusceencenesseesenseesencs 3,4

United States v. Brown, 488 F.2d 94 (5th Cir. 19998)........ Lene eeeeeueceeesenseetueeuseseueess 17

STATUTES

18 U.S.C. § 922 (g)(1)... ec eececceec ccc eceenecaetesseeeeenecseceeeeceeeeceuseuseeseuseusuasutesuscunacs 14

28 U.S.C. § L257. cc cccces cee cee ene ee nee neeeeceeeeeseeeeeeeesseeseeseeaseeueeecesenseusesseseuseueas 1

Federal Rule of Evidence 804(b)(3).......::ccccccsescessasccccesuseseeceeusaeeeseeueneeeceeneseeees 18

Federal Rule of Evidence 1101............cccccecssceeececceeeceecsessecseceuseusesaecuceceseaseueees 17

Tex. Code Crim. Proc. Ann art 42A.0538......... ccc ccc ccceccccceccceceecceccecteceesceseusceseesevess 8

Tex. Code Crim. Proc. Ann art 424.055... ccc ccc cece ee eee eensee eae eeeneneeceaeeeseeeeee sense 8

Tex. Code Crim. Proc. Ann art 424.101... ceccee ce seeeeeeeeeeeeeeeeeteseenseeseeseneees 8

Tex. Code Crim. Proc. Ann art 42A.108.........ccccec cee cece neces cena ee ene eee ncneeeeeenenueeeae sense 8

Tex. Code Crim. Proc. Ann art 42A.111(8).........ccccccsce sce cne ten eesen see eaceeeseeeeeaensen snes 9

Tex. Code Crim. Proc. Ann art 42A.111(D)...... cc. ccc ccccce ese cec eee eeceteseesaeceneeeaeoateaee sence 9

Tex. Code Crim. Proc. Ann arts 42.110........... cc ccecece eee eeceee ene sennee eee ceeneeeecuuseeseeesus 8

Texas Elections Code § 141.001(a)(4)....... ccc cecceccecteeseeceeeeenenseeeesucenceseasegenseeses 14

Texas Occupations Code Chapter 58.........ccccsccencceneenceencencsteaseseeencesaeessseeeseeeaes 14

Texas Rule of Evidence LOL(e).........cc.cce ccc cscceeseeteeeesseeneteesseenseeesaeeenasecceesenessees 17

Texas Rule of Evidence 803(24).........cccscecceececscteceeneeeceetneeeseeeaeeseeeesoneeenaeeaee sees 18

Texas Transportation Code Chapter 521............cccscccaceceene tee teeencenceeseecenceesonseese 14

TEXAS CONSTITUTION

Article 6, Section 1(a)(8) Texas Comst.........ccccccecesceeaceeceeenesteetsceeeaensoesnecesonseenees 14

UNITED STATES CONSTITUTION

U.S. Conts., Amdt. 6........cccccccscscscececcceveesessceenuseceetenenecustseeeeceeesesssseecseeeseeens 1,13

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PETITION FOR A WRIT OF CERTIORARI

Petitioner Beecher Montgomery seeks a writ of certiorari to review the

judgment of the Texas Court of Criminal Appeals (CCA).

OPINIONS BELOW

The published Opinion of the panel of the court of appeals is reported at

Montgomery v. State, Nos. PD-0581-22 & PD0582-22, 2026 WL 1899378 (Tex. Crim.

App. July 2, 2026), and is attached at Appendix A to this Petition. There was also a

concurring opinion and two dissenting opinions which are also attached. The district

court’s Judgment and Sentence is attached at Appendix B to this Petition. The district

court’s oral orders denying Petitioner’s objections to conduct hearing to adjudicate

guilt virtually is attached at Appendix C to this Petition. The Motion itself, is

attached at Appendix D to this Petition.

JURISDICTION

The Opinion and Judgment of the Texas Court of Criminal Appeals were

entered on July 2, 2026. This Court has jurisdiction pursuant to 28 U.S.C. § 1257.

RELEVANT CONSTITUTIONAL PROVISION

The Sixth Amendment to the United States Constitution provides, in part:

In all criminal prosecutions, the accused shall enjoy the right...to be confronted

with the witnesses against him.

STATEMENT OF THE CASE

This Petition arises following an adjudication of guilt by the trial court for

evading arrest with a vehicle (cause number 1591282D) and theft from a person

(cause number 1627542D). Petitioner was indicted for evading arrest and theft from

aperson. (CR 7.) He plead guilty to both cases and moved to have the Court sentence

him (2 RR. 9.) The Court did not find Petitioner guilty, and instead placed Petitioner

on Deferred Adjudication for 10 years on both cases. (2 RR. 9.) The State

subsequently filed both an original and amended petition to adjudicate Petitioner’s

guilt, seeking to convince the trial court to convict the Petitioner. (CR. 69 & 72.) A

hearing was then set on the petition. Despite multiple objections before and during

the proceeding on both Sixth and Fourteenth amendment grounds, the court held a

virtual hearing on the petition without Petitioner being present in the courtroom, or

even the courthouse, and adjudicated Petitioner guilty of both offenses. (8 RR. 8 &

118-119.) The Court then sentenced Petitioner to 20 years in the Texas Department

of Criminal Justice—Institutional Division in both cases, again without him being

physically present. (8 RR. 195.)

B. District Court Proceedings

The Court held the hearing on the State’s petitions to adjudicate guilt virtually,

despite Petitioner’s timely written and oral objections to the hearing being held in

this manner. (CR. 74 & 3 RR. 9-15 & 89). The State relied on the testimony of several

witnesses to obtain a conviction at the hearing, including Vicki Montgomery,

Christina Livingston, Ashley Ross, and Kendall Harris. (CR. 20-87). Throughout the

adjudication phase, it was clear that the virtual hearing was causing several

communication issues. (3 RR. 35, 40, 46, 83, 88, 95, & 158). During the adjudication

phase, Petitioner’s trial counsel objected again to the hearing being held virtually and

informed the court that he could not properly communicate with his client during the

proceeding. Id. at 89. The court, however, insisted on going forward in this manner.

Id. After Petitioner made this objection, the Court, having been frustrated with the

virtual nature of this proceeding, stated “remind me, we're not ever doing this again”

(referring to a proceeding being held virtually). Id. at 91. Even though Petitioner was

not physically present at the hearing, the Court found the allegations in the State’s

petition true and adjudicated Petitioner guilty of the offenses of evading arrest in a

vehicle and theft from a person. Id. at 118-119.

C. Appellate Proceedings

On direct appeal, Petitioner asserted that he was denied his Sixth Amendment

right to confront witnesses against him when the Court held a virtual hearing,

without his physical presence, on a petition to adjudicate him guilty. He also argued

that he was denied due process under the Fourteenth Amendment when he was not

allowed to be physically present at the hearing on a petition to adjudicate him guilty.

The Second Court of Appeals overruled both claims and affirmed the judgment in an

unpublished opinion. See Monigomery v. State, No. 02-21-00002-CR, 2022 Tex. App

LEXIS 7440 (Tex. App.—Fort Worth, October 6, 2022). The Court overruled

Petitioner ’s Sixth Amendment claim and held that the Confrontation Clause never

applies at a revocation hearing, even when a defendant has yet to be convicted. Id.

at *16. The Court overruled his due process claim and held that Petitioner “failed to

bring forward a sufficient record to demonstrate how he was denied due process.” Id.

at *12. Petitioner filed a petition for discretionary review with the Texas Court of

Criminal Appeals. The Court granted Petitioner’s petition on the Confrontation

Clause grounds and denied the petition on the due process grounds. The Court heard

oral argument on December 11, 2024. In a 5-4 decision, the Court affirmed the

Second Court Appeals, holding that the Sixth Amendment does not apply at a hearing

on a petition to adjudicate a defendant’s guilt. Monigomery, 2026 WL 1899378 at *8.

The Court reasoned that community supervision (probation) is a privilege and not a

right. Id. at *6-7. The Court further noted that when “a probation is revoked” there

is no “deprivation of a right.” Jd. at *7.

In his dissenting opinion, Judge Finley noted that a motion to adjudicate a

defendant guilty is fundamentally different than a federal probation revocation—

considered by this Court in Gagnon v. Scarpelli and a regular, non-deferred,

probation in Texas. Id. at *22-24. (Finley J. Dissenting). Therefore, this issue is not

foreclosed. Judge Finley noted that he would reverse the judgment of the court of

appeals and remand for consideration of the merits of the Petitioner ’s Confrontation

Clause claim because deferred adjudication has several unique characteristics

making it a continuation of the criminal prosecution. Id. at *23-31. Those unique

characteristics included;

e Noconviction is imposed at the time the defendant is placed on deferred

adjudication.

e Itis simply a pause in the proceedings.

e Charges are dismissed if deferred adjudication is successfully

completed.

e The hearing to adjudicate guilt is a continuation of the criminal

prosecution that preceded the motion to adjudicate guilt.

e 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.

e A defendant remains “accused” while on deferred adjudication.

e The adversarial process is not terminated in that the defendant is not

convicted when placed on deferred adjudication.

e Evidence offered at an adjudication hearing is offered to secure a

conviction.

Id.

In a second dissenting opinion, Judge Walker reasoned that the majority failed

to understand and appreciate the differences between deferred adjudication

probation and regular probation in the State of Texas. Jd. at *18-20 (Walker, J.,

Dissenting). The Court simply classified those two types of probation together in

coming to its decision. [d. Judge Walker also took exception with the majority stating

this hearing was not a part of the criminal prosecution in that:

e Deferred adjudication occurs before the conviction and sentence.

The defendant, although having pled guilty, remains unconvicted and

unsentenced, thus the criminal prosecution is ongoing.

Deferred adjudication pauses the proceedings, which means the

proceedings start back up if it is alleged the defendant violated

probation.

The hearing to adjudicate guilt could have a direct impact on whether

the defendant is actually convicted of a crime.

The result of the criminal prosecution depends upon the result of the

deferred adjudication proceeding.

Id.

REASONS FOR GRANTING THE PETITION

In a 5-4 decision, the Texas Court of Criminal Appeals decided that

citizens accused of criminal offenses do not have a right to confront

witnesses against them at hearings to adjudicate their guilt, despite the fact

that; 1) the accused walks into that hearing having not been convicted of a

crime 2) the judge presiding at the hearing can take dispositive actions on

the case ranging from an outright dismissal of the case to convicting the

defendant, 3) the State presents evidence at the hearing for the sole purpose

of convincing the judge to convict the defendant of a crime, and 4) the court

must weight evidence presented at the hearing in making his determination

of whether or not to convict the defendant of a crime. When a defendant

goes on deferred adjudication, the criminal prosecution is paused. The

prosecution of the defendant resumes when the State files a petition to

adjudicate the defendant guilty. The CCA’s opinion sets a dangerous

precedent, which seemingly allows the Government to present evidence at

the hearing without live witness testimony. The CCA's ruling will allow the

Government to convince the court to finally convict a defendant based on

statements made outside of court, without an opportunity for the defendant

or his attorney to cross-examine that witness. Meanwhile, a defendant at

such a hearing enjoys every other constitutional right including the Fourth

Amendment right against unreasonable searches and seizures, the Fifth

Amendment right against self-incrimination, and the Sixth Amendment

right to counsel. This ruling deprives Texas citizens of their right to

confront witnesses at a critical stage of the criminal prosecution—perhaps

the most critical—the stage in which they are convicted of a crime.

A. Deferred Adjudication in the State of Texas

In Texas, probation can come in two forms, a regular probation, and a deferred

adjudication probation. If a defendant is placed on regular probation, he or she is

jinally convicted of the criminal offense for which they are accused. Tex. Code Crim.

Proc. Ann arts 424.053 & 424.055. The Defendant is sentenced to a term of prison

time, with the time being probated by the Court for a specified amount of time. Id.

At the time the defendant is placed on regular probation the criminal prosecution has

concluded, as the defendant is already convicted and sentenced and any probation

revocation matters occur after conviction. Id.

On the other hand, if the defendant is placed on deferred adjudication

probation, he or she remains unconvicted and unsentenced, although having pled

guilty. Id. at 42A.101. The Court cannot place a defendant on deferred adjudication

if the court or a jury previously found the defendant guilty. If placed on deferred

adjudication probation, the criminal prosecution is not over yet as the Texas judge

withholds a finding of guilt by granting deferred adjudication. Jd. If the court finds

that the defendant violated a condition of his deferred adjudication, the criminal

prosecution can resume as if he was never placed on deferred adjudication. Tex. Code

Crim. Proc. Ann arts. 42A.108, 42.110. To the contrary, if the trial court concludes

that there was no violation, the criminal prosecution does not resume. If the

8

Defendant successfully completes the terms of the deferred adjudication, the criminal

prosecution gets dismissed entirely. Id. at 42A.111(a). The Court has authority to

dismiss the case at any time during the period of deferred adjudication. Id. at

42A.111(b). In other words, even if the defendant is placed on deferred for ten years,

the court has authority to dismiss the case after day one of the deferred. Therefore,

when the trial court conducts a hearing regarding a deferred adjudication, evidence

can be presented to either convince the trial court to 1) finally convict the defendant

or 2) dismiss the case outright. This is a far cry from a typical state or federal regular

probation matter, where the defendant is finally convicted the moment he begins

probation without any hope or avenue for a dismissal of the charges.

In describing the unique nature of deferred adjudication, the Court of Criminal

Appeals previously stated:

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

the 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.

Middleton v. State, 6384 S.W.3d 46, 50 (Tex. Crim. App. 2021).

In short, no conviction or sentence is imposed on a deferred adjudication case.

The deferred serves as a “pause” in proceedings, i.e. the criminal prosecution. When

a hearing to adjudicate guilt is initiated the “play” button is hit and criminal

prosecution resumes.

B. This Court has not addressed whether the confrontation clause applies

at hearings to adjudicate guilt and therefore the issue is not foreclosed.

This Court has never addressed whether the Sixth Amendment Confrontation

Clause applies at a hearing to adjudicate guilt stemming from a deferred adjudication

probation where a defendant enters the hearing unconvicted. This Court has held

that the revocation of parole in federal cases is not a stage in a criminal prosecution.

Morrissey v. Brewer, 408 U.S. 471 (1972). This Court reasoned that “parole arises

after the end of the criminal prosecution, including imposition of sentence.” Id. at

480. The Court also reasoned that “revocation deprives an individual, not of an

absolute liberty to which every citizen is entitled, but only of the conditional liberty

dependent on observance of special parole restrictions.” Id.

This Court has also held that a federal probation revocation, like a parole

revocation, is “not a stage of a criminal prosecution.” Gagnon v. Scarpelli, 411 U.S.

778, 782 (1973). The Court reasoned that “revocation of probation where sentence

has been imposed previously is constitutionally indistinguishable from the revocation

of parole.” Jd. at 782 & n.4 (citing Van Dyke, Parole Revocation Hearings in

California: The Right to Counsel, 59 CALIF. L. REV. 1241-48 (1971).

This Court stated that a federal probation revocation is unlike a criminal trial

10

in which the State is represented by a prosector; 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 adversarial 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 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 and parole

Scarpelli, 411 U.S. at 789.

The Texas Court of Criminal Appeals has noted key differences from Texas and

federal revocation hearings in discussing Morrissey and Scarpelli.

The State is represented by a prosecutor, the defendant

does have a right to counsel, the hearing is before a judge,

formal rules of evidence do apply, and there may be an

appeal directly to the court of appeals....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...there are

few procedural differences between a Texas criminal trial

and a Texas community-supervision revocation hearing.

Ex Parte Doan, 369 S.W.3d 205, 210 (Tex. Crim. App. 2012).

This Court has rarely dealt with issues related to Texas deferred adjudication.

However, this Court has reviewed the issue of whether deferred adjudication in Texas

qualifies as a “judgment” under Texas law in the context of the Antiterrorism and

Effective Death Penalty Act of 1996. Caldwell v. Quaterman, 549 U.U. 970, 971

(2005) (Denying Cert). Specifically, whether an order placing a defendant on

deferred adjudication qualified as a “judgment” therefore requiring a federal writ of

habeas corpus to be filed within one year of that order. Id. In reviewing a petition

Il

for writ of certiorari, this Court determined that an order placing a defendant on

deferred adjudication in Texas is not a conviction and therefore is not a judgment.

Id. However, this Court denied the petition in that the Fifth Circuit “had a justifiable

basis for concluding that nonliteral reading is consistent with Congress’ intent to curb

the abuse of statutory writ of habeas corpus and address problems with unnecessary

delay.” Id. at 972.

As this Court suggested in denying certiorari in Caldwell, placement of

deferred adjudication merely continues the criminal case and pauses the proceedings.

It does not end the proceedings as the indictment is still pending and judgment has

not been rendered. Id. at 971.

C. The Confrontation Clause should apply at hearings to adjudicate guilt

as the hearing ts a resumption of the criminal prosecution—where the

court must determine whether to convict the defendant of a criminal

offense.

I. Founder’s Intent

Imagine if the Founding Fathers were told that courts in the original colonies were

holding hearings in which:

e Evidence is presented to convince a judge to convict a defendant of a

criminal offense;

e Evidence is also presented to convince the judge to dismiss the criminal

offense; and

e The judge could sentence a defendant to life in prison at the conclusion

of the hearing.

12

The Founding Fathers would emphatically agree that a defendant should have

the right to confront witnesses at such a hearing. A plain reading of Confrontation

Clause makes their intent abundantly clear. “In all criminal prosecutions...the

accused shall have the right to confront witnesses against him.” U.S. CONST. amend.

VI (emphasis added). This Court has reasoned that the Framer’s intended to prohibit

trials by way of affidavit and out-of-court statements, holding that barring some

exceptions, the admission of testimonial, out-of-court- statements from a nontestifying witness violates the Confrontation Clause. Davis v. Washington, 547 U.S.

813, 821 (2006); Crawford v. Washington, 541 U.S. 36, 68 (2004).

Four of the nine court of Texas Court of Criminal Appeals Judges in this matter

agreed that a hearing to adjudicate guilt is a part of the criminal prosecution.

Monigomery, 2026 WL 1899378 at *1. The same Court declared in 2021 that deferred

adjudication is a “pause” in the criminal prosecution. Middleton, 634 S.W.3d at 50.

If the prosecution is “paused” the it must be reinitiated in order for prosecution to

end, as once a defendant is convicted and found guilty the prosecution is over. The

hearing to adjudicate guilt is that reinitiation, as the judge must determine in this

hearing whether to find a defendant guilty of a criminal offense or not. If placement

on deferred adjudication is a “pause” button in the criminal prosecution, the State of

Texas’ motion to adjudicate hearing and subsequent hearing to adjudicate serves as

the “play” button, restarting adversarial proceedings that carry with them

Confrontation Clause Protections. Unless and until guilt is adjudicated, a defendant

continues to enjoy the full slate of rights provided by the United States Constitution.

13

The CCA, in coming to the court’s decision, reasoned that when “a probation is

revoked” there is no “deprivation of a right.” Monigomery, 2026 WL 1899378 at *7.

The CCA majority failed to recognize the critical differences between a regular

probation and deferred adjudication. The hearing to adjudicate guilt is a watershed

moment in the criminal prosecution where, depending on the result of the hearing,

many rights are lost. At this critical stage of the criminal prosecution—the

adjudication hearing—the court weighs evidence presented at the hearing. Based on

the evidence presented, the trial court makes a determination of whether or not a

defendant will be convicted of a crime, in this particular case, a felony. If the

defendant does not have a criminal history (many individuals placed on deferred

adjudication do not) a defendant walks into with the hearing the right to vote, the

right to possess a firearm, and the right to hold public office. See Article 6, Section

1(a)(3) TEXAS CONST (right to vote); 18 U.S.C. § 922(g)(1) (prohibition of firearms

possession with felony conviction); Texas Elections Code § 141.001(a)(4) (right to run

for public office). If, after weighing the evidence presented at the hearing, the court

decides to convict, the defendant losses those rights. Jd. Not to mention, the

defendant suffers countless other collateral consequences in the State of Texas, such

as the suspension or loss of a driver’s license or possible revocation of a professional

license. See Texas Occupations Code Chapter 53 Gmpact on professional licenses

upon conviction) & Texas Transportation Code Chapter 521 (suspension of driver’s

license upon conviction). With so much at stake at the conclusion of this hearing the

founding fathers would demand confrontation.

14

2. The hearing to adjudicate is the most critical stage—conviction or

dismissal.

A careful review of all possible actions of the trial court at a hearing to

adjudicate further demonstrates that these hearings are a part of the criminal

prosecution. Even though the trial court typically places a defendant on deferred

adjudication after a guilty plea, the court still has full authority at the hearing on

adjudication of guilt to refrain from finding the defendant guilty. Even if a petition

to adjudicate guilt listed ten allegations, and the court found all ten allegations true

at the hearing to adjudicate, the court could still keep the defendant on deferred

probation and not adjudicate him (convict) —based on the trial court’s consideration

of testimony presented at the hearing to adjudicate.

Further, The Court has full authority to terminate a defendant’s deferred

probation and dismiss the criminal prosecution at any time. Tex. Code Crim. Proc.

Art. 42A.111(b). The Court could terminate the defendant’s probation one day into a

ten-year deferred sentence and dismiss the case. Id. Therefore, at a potential hearing

to adjudicate guilt, the Court could do anything from adjudicate (convict) and

sentence a defendant up to life in prison (should the defendant be on deferred for a

first-degree felony) to dismiss the case based on the evidence presented at the hearing.

All the while, a prosecutor will be present at the hearing, advocating the State’s

position and presenting evidence to obtain a conviction. For instance, during a

hearing on a petition to adjudicate for a first-degree felony, the State could fail to

meet its burden to prove the allegations listed in the petition. During this same

hearing, the defendant could establish that he has turned his life around and been

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fully compliant. At the conclusion of the hearing, the trial could find the allegations

“not true” and dismiss the criminal prosecution outright. On the other hand, the

Court could find that the State has met its burden based on the evidence presented

at the hearing, find the defendant guilty, if the trial court so chooses, and sentence

him up to life in prison in the same hearing. This example is fully within the

parameters of the law as the court has categorical authority at the hearing to

adjudicate. Such a vast contrast of possible outcomes lends credence to the fact that

a hearing on a petition to adjudicate guilt is a crucial step in a criminal prosecution

and requires confrontation.

3 The CCA has now opened the door to a lack of confrontation against

new allegations made after placement on deferred, as the hearing

to adjudicate guilt is typically the only opportunity to confront and

cross examine witnesses of those allegations.

There is a key practical constitutional consideration that impacts the

criminally accused at the hearing to adjudicate as well, and further demonstrates

why confrontation is critical and should be constitutionally mandated at such

hearings. When a defendant is charged with a new offense while on deferred

probation, the hearing to adjudicate guilt is typically the vehicle in which that new

case itself is ultimately adjudicated. At a hearing to adjudicate, evidence is presented

to support the new allegation. The court makes a factual determination as to whether

the new offense was proven by the preponderance of the evidence based on the

evidence presented. If the burden is met, the trial court will determine whether to

convict the defendant of the matter for which he was placed on deferred adjudication.

It is very rare to see the State proceed on new allegations subsequent to the hearing

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to adjudicate guilt. Specifically, when that new allegation is used to show a violation

of the deferred and used at the hearing to obtain a conviction for the offense the

defendant was originally placed on deferred for. Typically, after the hearing to

adjudicate is over, the new case is resolved by way of a dismissal or a plea to a

concurrent sentence with the case that was adjudicated. It would be highly unlikely

and arguably illegal for the State to proceed on the new case if the Court found that

allegation “not true” at the hearing on the petition to adjudicate. The hearing to

adjudicate guilt is likely the only time that the facts of the new case will be heard in

open court with live testimony, making it not only a critical step in the criminal

prosecution for the underlying case that was deferred, but also the newly alleged case.

Therefore, confrontation should be required at a hearing to adjudicate guilt.

4. State v. Federal—There is much more at stake a hearing to

adjudicate guilt when compared to a federal probation revocation

which was contemplated is Scarpelli. Thus, a citizen is afforded

almost every constitutional right at the hearing.

At the hearing to adjudicate guilt, a defendant is afforded every constitutional

right, except the right to confrontation according to the CCA. Unlike federal

probation revocations, such as the revocation at issue in Scarpelli, the rules of

evidence apply at hearings to adjudicate guilt. See Federal Rule of Evidence 1101

and Texas Rule of Evidence 101(e). The exclusionary rule also applies at the hearing

to adjudicate guilt in Texas, but not at a federal probation revocation. See generally

Moore v. State, 562 S.W.2d 484, 486-87 (Tex.Crim.App. 1978)—ruling a fourth

amendment violation led to the exclusion of evidence at a revocation hearing; see also

United States v. Brown, 488 F.2d 94 (5th Cir. 1993)—holding that the exclusionary

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rule does not apply at federal probation revocation hearings. Therefore, potential

evidence at the hearing to adjudicate guilt can be excluded due to a Fourth

Amendment violation for an unreasonable search or seizure. Further, since the

exclusionary rule applies at Texas hearings to adjudicate guilt, violations of the Fifth

Amendment right against self-incrimination could also lead to exclusion of evidence

at the hearing. The defendant also has a Sixth Amendment right to counsel at the

hearing adjudicating guilt. Ex Parte Shivers, 501 S.W.2d 898, 900-01 (Tex. Crim.

App. 1973). After the CCA’s ruling this case, the only constitutional right that does

not exist in these hearings is the Defendant’s right to Confrontation. To exclude that

right, while requiring every other Constitutional right defies logic, and the cripples

the original into of the Founders—to have confrontation at every stage of the criminal

prosecution.

5. The Court’s decision sets a dangerous precedent as convictions can

now be obtained at a contested hearing without cross examination.

In addition, the CCA decision sets an extremely dangerous precedent. The

following chilling hypothetical is now authorized after the CCA’s ruling in this case.

A defendant is placed on deferred adjudication for a fist degree felony for a period of

five years. At four years and eleven months, a witness reports to the State of Texas

that the defendant committed a crime. Specifically, the witness comes into the police

station and provides a recorded statement. During this statement, the witness

incriminated himself and therefore the hearsay exception of a statement against

penal interest applies. See Federal Rule of Evidence 804(b)(3) & Texas Rule of

Hividence 803(24). The State would be authorized to play the statement at the hearing

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to adjudicate guilt without calling the witness, even though the statement is clearly

testimonial. The Court can consider that statement and that statement alone—

without cross examination—in making the decision to convict the defendant of a firstdegree felony and subsequently sentencing the defendant up to life in prison during

the same hearing. At this same hearing, the defendant enjoyed every other

constitutional right, yet he was denied his critical right to confront witnesses against

him. Petitioner respectfully requests that this Court grant defendants at such

hearings what the founders intended—confrontation of the witnesses against them.

D. Petitioner was denied his right to confront witnesses at his own

hearing to adjudicate guilt when the trial court conducted the hearing

virtually with the Defendant present in a different building than both

the witnesses testifying against him and his own trial attorney.

A fundamental right guaranteed by the Confrontation Clause is the accused’s

right to be present in the court room at every stage of his trial. Illinois v. Allen, 397

U.S. 337, 338 (1970). This includes the right to face-to-face confrontation and the

right to effective and meaningful cross examination. Davis v. Alaska, 415 U.S. 308,

94 (1974). This Court has recognized the importance of face-to-face in person cross

examination by stating the right of confrontation forces the witness to submit to cross

examination, the “greatest legal engine ever invented for the discovery of truth.”

California v. Green, 399 U.S. 149, 158 (1970).

Petitioner was denied his Sixth Amendment right to confront witnesses

against him at his hearing on the State’s petition to adjudicate guilt. Petitioner was

denied face to face confrontation of the witnesses who testified against him as he was

not even in the same building as the witnesses. These witnesses testified for the sole

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purpose of obtaining a conviction of the Petitioner. In addition, Petitioner was unable

to effectively communicate with his own counsel at the hearing. (3 RR. 89).

Paramount to an accused right to confront a witness, is being side by side with

counsel at counsel table, providing live feedback to counsel as the testimony occurs.

Ordinarily, when trying a case, the accused can write a note to counsel or even

whisper something to counsel as the testimony occurs, without the State knowing of

this conferment. To be denied that opportunity is a tremendous disadvantage to the

accused and an infringement of his constitutional rights. It appears from the record

that the State had this advantage. Some of the witnesses were in the District

Attorney’s Office lounge together, which likely provided the State with full access to

these witnesses. (8 RR. 60-61). Meanwhile Petitioner was not even allowed to be

present in the same room as his own counsel.

Tellingly, after experiencing all of these frustrations and difficulties during the

virtual hearing, the Court proclaimed to the parties “remind me, we're not ever doing

this again.” (8 RR. at 91). He was clearly referring to having a virtual hearing as

opposed to an in-person hearing. Petitioner ’s trial counsel shared in the Court

exacerbation. Towards the end of the adjudication phase, counsel notified the Court

that the virtual nature of the proceeding caused “an infringement to talk” to his client.

(3 RR. at 91). He further stated that he was “not sure if he (Petitioner) gets to say

everything he wants.” (3 RR. at 91). Despite expressing these alarming issues, the

Court insisted on proceeding virtually. (8 RR. at 91). All of these difficulties could

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have been eliminated by simply having the hearing in person and affording Petitioner

his right to confront witnesses in person.

In addition, there were several complications caused by the virtual nature of

the proceedings, therefore: depriving Petitioner his true right to face-to-face

confrontation. These complications included: |

e There was a disturbance at the jail—enough of a disturbance for the

parties to note that it was a “loud disturbance!.” (8 RR 35).

e Confusion as to which party was being asked a question. On one

occasion, Petitioner thought he was being asked a question; Id. at 40.

e Petitioner ’s trial counsel wanted a witness to review an exhibit at that

exact moment and he could not; Jd. at 51.

e As a witness is testifying, she completely disappears from the

proceeding; Jd. at 60.

e The court cannot hear the testimony adequately; Id. at 85.

e The court at one time states he “lost everything,” specifically all the

parties and exhibits in front of him at the proceeding; Id. at 88.

e Petitioner is forced to keep his mask on and he cannot properly be heard;

Id. at 95. and

e There were questions of visibility of a witness. Id. at 158.

1 Petitioner was forced to “appear” at this hearing from the jail, while others could

attend from the confines of their offices.

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Although these complications would seem minor in any other setting in which

video conferencing is utilized—i.e. a business setting, these complications having

occurred in a matter in which a person’s liberty is at stake are inexcusable and

effected Petitioner’s right to confront the witnesses against him.

Although the Founders of our great country likely could have never foreseen

what a virtual hearing looked like, they did have the great knowledge and

understanding of what is fundamentally fair. Specifically, that a defendant has the

right to confront witnesses against him. Petitioner was denied this right.

CONCLUSION

Petitioner respectfully submits that this Court should grant certiorari to

review the judgment of the Texas Court of Criminal Appeals.

Respectfully submitted this |e aay of AaeS+ , 2026.

MATTHEW J. SMID

Law Office of Matthew J. Smid,

Matthew J. Smid

301 Commerce Street, Suite 2001

Fort Worth, TX 76102

817.332.3822 (t)

817.332.2763 (f)

matt@mattsmidlaw.com

TX Bar No. 24063541

Attorney for Petitioner

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