IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. 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
WALKER, J., filed a dissenting opinion.
DISSENTING OPINION
The Court’s opinion today retreads old ground. It is well-settled that regular
probation revocation hearings are not criminal prosecutions. See Hill v. State, 480
S.W.2d 200, 202 (Tex. Crim. App. 1971). Nevertheless, the Court considers the
“question before us today [of] whether” a hearing on “a motion to enter adjudication
of guilt from a deferred adjudication followed by a motion to revoke probation lies
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within a ‘criminal prosecution’ as understood by the Sixth Amendment or not.”
Majority opinion at 6. And the Court answers, finding no error in this case “[b]ecause
the Confrontation Clause does not apply to probation revocation and adjudication of
guilt hearings,” id. at 2, and concluding that “[t]he trial court did not err . . . because
[the Confrontation Clause] did not apply to an adjudication of guilt and probation
revocation hearing.” Id. at 8.
But probation revocation hearings are not the issue. If probation revocation
hearings are what this case is about, we would not have granted Appellant’s petition
for discretionary review. The reason why we granted this petition is because this case
involves a hearing on a motion to adjudicate, as well as a hearing on a motion to revoke
probation.1
Instead of focusing on the significance of deferred adjudication on its own
terms, the Court’s analysis revolves primarily around regular probation. To the extent
it mentions deferred adjudication, the Court off-handedly tosses deferred in the
1
We granted Appellant’s second issue raised in his petition, which argued that:
The Second Court of Appeals decided an important question of federal law that
conflicts with Court of Criminal Appeals decisions when it held that Appellant’s
Sixth Amendment right to confront witnesses was not violated by having a virtual
hearing on a motion to adjudicate guilt and subsequent sentencing hearing despite
his request to be physically present before and during the proceedings.
(emphasis added).
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probation box, see majority op. at 7 (“community supervision (which includes deferred
adjudication)”), and notes that a trial judge may withhold a finding of guilt and grant
deferred adjudication to a defendant. Id. at 7–8.
Of course, deferred adjudication and probation have similarities. Both involve
community supervision, where a person is released for a period of time and is required
to abide by certain conditions. If he successfully does so, then he remains free, and if
he does not, he is subject to being jailed or imprisoned.
But the two are also different. There is an argument that, unlike a hearing on a
motion to revoke probation, a hearing on a motion to adjudicate is an integral part of
the criminal prosecution against the defendant. Deferred adjudication occurs before
the conviction and sentence. The defendant, although having pleaded guilty, remains
unconvicted and unsentenced. The criminal prosecution itself is not over yet. TEX.
CODE CRIM. PROC. Ann. art. 42A.101(a) (further proceedings are deferred). It is still
ongoing and paused while the defendant goes on deferred adjudication community
supervision. Middleton v. State, 634 S.W.3d 46, 50 (Tex. Crim. App. 2021)
(characterizing deferred adjudication as a pause in the proceedings). The criminal
prosecution can resume as if there had been no deferred adjudication, if the court finds
that the defendant violated a condition of his deferred adjudication community
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supervision. TEX. CODE CRIM. PROC. Ann. arts. 42A.108, 42A.110. Or the criminal
prosecution does not resume, if the trial court concludes that there was no violation.
Or the criminal prosecution gets dismissed entirely, if the defendant successfully
completes the term of community supervision. Id. art. 42A.111(a). A hearing on a
motion to adjudicate could have a direct impact on whether the defendant is
convicted, what sentence he might receive, and even the possibility of probation. Id.
art. 42A.110. The result of the criminal prosecution depends upon the result of the
deferred adjudication proceeding.
In contrast, with regular probation the judgment of conviction has already been
entered, and the sentence has already been pronounced. The criminal prosecution has
already concluded, and probation and any probation revocation hearing occur
afterward. The facts of conviction and sentence do not change, no matter what
procedural protections are, or are not, afforded to the defendant in a hearing on a
motion to revoke regular probation.
Deferred is different from regular probation. That is why this case mattered.
It is questionable whether the Court even addresses the actual issue before us
of whether the Confrontation Clause of the Sixth Amendment applies in hearings on
motions to adjudicate. Instead, the Court reiterates that a hearing on a motion to
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revoke probation is not a criminal prosecution, and simply notes in passing that
deferred adjudication is probation.
This Court should squarely address whether the right to be present under the
Confrontation Clause of the Sixth Amendment applies in a hearing on a motion to
adjudicate because it is, or is not, part of the criminal prosecution.2 That is the point of
Appellant’s case, not regular probation.
I respectfully dissent.
Filed: July 2, 2026
Publish
2
I do want to acknowledge that Judge Keel, Judge Finley, and Judge Parker offer their own opinions on that question.