Court of Criminal Appeals of Texas, Nos. PD-0581-22 & PD-0582-22 (July 2, 2026)
On July 2, 2026, the Texas Court of Criminal Appeals answered a question that has quietly shadowed thousands of deferred adjudication cases: does the Sixth Amendment’s Confrontation Clause apply when the State moves to adjudicate a defendant’s guilt and revoke community supervision? In Montgomery v. State, a divided court said no. Because a motion to enter an adjudication of guilt is not a “criminal prosecution” within the meaning of the Sixth Amendment, the confrontation right—and with it the Crawford rule barring testimonial hearsay—simply does not attach at that hearing.
The practical stakes are large. It means the State can proceed to adjudicate and revoke using evidence that would be inadmissible at a trial, and it can do so by video, over a defendant’s objection. Below I walk through what the court decided, the reasoning of the majority and the Keel concurrence, what protections survive, how this should change the way defense lawyers admonish clients before they accept deferred adjudication, and whether the U.S. Supreme Court would likely reach the same result.
What Happened in Montgomery
Beecher Montgomery was indicted in Tarrant County for theft from a person and evading arrest with a vehicle in two separate cause numbers. He pleaded guilty to both, signed a judicial confession as part of his plea admonishments, and asked the court to place him on community supervision. On June 30, 2020, the trial court placed him on deferred adjudication for ten years on both cases. As part of the plea bargain, the State agreed not to pursue a habitual-offender enhancement.
Within weeks, things unraveled. In August 2020, after Montgomery was arrested for several new offenses, the State filed a Petition to Proceed to Adjudication. In October, the State amended the petition to add allegations that he had violated a protective order and admitted using illegal drugs. Montgomery filed a written objection to conducting the hearing virtually, invoking equal protection and due process. At the January 6, 2021 Zoom hearing he re-urged that objection and added that the virtual setup burdened attorney-client communication and denied him the right to be present to confront witnesses. He even pointed out the State’s inconsistency—elsewhere it had insisted on an in-person murder trial to protect confrontation rights, yet here it wanted him adjudicated by video over his objection.
The trial court overruled the objection, granted a running objection, and after the hearing found all but one of the State’s allegations true. It adjudicated Montgomery guilty of both offenses and revoked his community supervision. The Second Court of Appeals in Fort Worth affirmed, holding both that the virtual hearing did not violate due process and that the Confrontation Clause does not apply to a revocation proceeding because it is not a stage of a criminal prosecution. The Court of Criminal Appeals granted review on the Confrontation Clause question only.
The Question Presented
The Sixth Amendment guarantees that “in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” The right to confront necessarily includes a right to be physically present. But by its own terms, the Confrontation Clause is triggered only by a “criminal prosecution.” The narrow question, then, was whether a motion to enter an adjudication of guilt on a deferred adjudication, followed by a motion to revoke, is part of a “criminal prosecution” under the Sixth Amendment.
The Majority’s Reasoning
Writing for the court, Judge Richardson (joined by Presiding Judge Schenck and Judges Yeary, Keel, and Parker) held that although an adjudication hearing is undeniably related to a criminal prosecution and can cost the defendant his liberty, several features distinguish it from a true criminal prosecution and place it outside the Confrontation Clause.
Community supervision is a privilege, not a right
The court leaned heavily on the difference between the liberty interest at a trial and the interest at stake in a revocation. At trial, the defendant risks losing liberty “naturally his by constitutional default.” Community supervision, including deferred adjudication, is by contrast “a privilege, not a right.” Speth v. State, 6 S.W.3d 530, 533 (Tex. Crim. App. 1999). The decision to grant probation is “wholly discretionary and nonreviewable,” an act of “clemency” or “grace” extended on the condition that the defendant follow the rules. See Escoe v. Zerbst, 295 U.S. 490, 492–93 (1935). When a court revokes, the majority reasoned, it is withdrawing a privilege it always had discretion to give—not depriving the defendant of a right. That framing tracks the U.S. Supreme Court’s parole and probation cases, Morrissey v. Brewer, 408 U.S. 471 (1972), and Gagnon v. Scarpelli, 411 U.S. 778 (1973), which hold that revocation deprives a person only of “conditional liberty” and is not a stage of a criminal prosecution.
The hearing looks nothing like a trial
The court also emphasized the mechanics of the adjudication hearing. The focus is not guilt of the charged offense but whether the defendant failed to perform the terms of his agreement. The burden of proof is a mere preponderance of the evidence, not proof beyond a reasonable doubt. See Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993). And that burden may be carried using relaxed evidentiary rules, reflecting the hearing’s essentially administrative character. If the judge finds any allegation true, the judge may proceed to dispose of the case as if there had been no community supervision. Tex. Code Crim. Proc. art. 42A.755(a)(1). In short, a defendant facing adjudication does not enjoy the protections of a defendant who pleaded not guilty and demanded a trial—so, the court concluded, the trial court did not err in overruling the confrontation objection.
The Keel Concurrence: Text First
Judge Keel, joined by Presiding Judge Schenck and Judges Yeary and Parker, wrote separately to anchor the result in the words of the Clause itself. Her point: even if you set aside the “privilege” framing, the text does not fit. An adjudication hearing is not a “criminal prosecution” regardless of outcome; the respondent to a motion to adjudicate is not “accused”; and the witnesses at the hearing are not “against” him within the meaning of the Clause.
The evidence at an adjudication hearing, she reasoned, is offered to assess the defendant’s performance on probation—not to establish guilt of the charged offense—so the witnesses are not “against” him in the ordinary confrontation sense. Cf. Cruz v. New York, 481 U.S. 186, 190 (1987). And the defendant is no longer “accused” of the underlying crime: he lost the presumption of innocence when he judicially confessed and the trial court found that the evidence substantiated his guilt. After that, his liberty is only conditional. The concurrence drew directly on the court’s 2025 decision in Ex parte Zubiate, 710 S.W.3d 724 (Tex. Crim. App. 2025), which held the Confrontation Clause inapplicable to parole revocation for three parallel reasons—such hearings are not criminal prosecutions, the parolee is not “accused,” and the witnesses are not “against” him.
Judge Keel also took pains to bury a case defense counsel often raise in this area: Ex parte Doan, 369 S.W.3d 205 (Tex. Crim. App. 2012). Doan, she explained, was a res judicata decision resting on state-law grounds; it said nothing about confrontation and does not control here.
What the Court Did NOT Decide—and What Still Protects Your Client
It is critical not to overread Montgomery. The court held only that the Sixth Amendment Confrontation Clause does not apply. It did not hold that a defendant at an adjudication hearing has no right to confront witnesses at all. Those rights still exist—they simply come from the Due Process Clause of the Fourteenth Amendment, not the Sixth.
Under Morrissey and Gagnon, due process guarantees a person facing revocation written notice of the claimed violations, disclosure of the evidence, an opportunity to be heard and to present witnesses, a neutral decision-maker, a written statement of the reasons for revocation—and “the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).” That is a real but weaker right. It is a balancing test, not an absolute bar, and—importantly—the court has already made clear it can be satisfied by video. In Zubiate, the court held the due-process confrontation right “need not be exercised in person” and is satisfied through video conferencing when the person can see, hear, and cross-examine witnesses in real time. Review in Montgomery was granted only on confrontation, so the due-process presence question the defendant also raised was not decided here.
The Dissents and the Strongest Counterargument
The decision was not unanimous. Judge Walker and Judge Finley each dissented, and Judges Newell and McClure noted their dissent. The strongest argument against the majority is not hard to identify, and defense lawyers should understand it because it is the argument most likely to travel to the U.S. Supreme Court someday.
Deferred adjudication is different from ordinary probation revocation in one meaningful respect: at the deferred adjudication stage, the court has never actually adjudicated guilt. The adjudication hearing is the very moment the court first enters a formal finding of guilt and imposes sentence. The U.S. Supreme Court held in Mempa v. Rhay, 389 U.S. 128 (1967), that a combined probation-revocation and deferred-sentencing hearing is a “critical stage” at which Sixth Amendment protections (there, the right to counsel) attach, precisely because sentencing occurs. One can argue that if sentencing makes the hearing a critical stage for counsel purposes, the entry of a guilt finding should make it enough of a “criminal prosecution” to trigger confrontation.
The majority’s answer is that the confrontation right protects against witnesses who testify to your guilt of the charged crime—and at a Texas adjudication hearing, no one does. Guilt of the theft and evading offenses was already established by Montgomery’s guilty plea and judicial confession. The witnesses at the hearing testified only to supervision violations. On that view, the guilt-determining phase of the “criminal prosecution” ended at the plea, and what remained was a conditional-liberty proceeding governed by due process. Whether that distinction holds up is the heart of the debate.
What This Means for Defense Lawyers: How to Admonish Your Client
The most important practical lesson in Montgomery is not about the hearing you litigate—it is about the conversation you have with your client before they accept deferred adjudication. Deferred adjudication is attractive: it can keep a conviction off the record and preserve eligibility for a later nondisclosure. But the flip side is that if the State later moves to adjudicate, your client walks into a proceeding with a fraction of the protections they would have at trial. That trade-off has to be explained clearly, and the explanation should be documented.
At a minimum, admonish the client—in writing—that if the State later moves to adjudicate:
- The burden drops to a preponderance of the evidence. The State no longer has to prove anything beyond a reasonable doubt. A more-likely-than-not showing on a single alleged violation is enough.
- There is no jury. The same judge who placed the client on deferred adjudication decides whether a violation occurred and whether to adjudicate.
- The Confrontation Clause does not apply. After Montgomery, the State can rely on evidence that Crawford would exclude at trial. Testimonial hearsay—lab reports, affidavits, statements of absent witnesses—can come in.
- The rules of evidence are relaxed. The hearing is treated as administrative in nature, and much of what would be inadmissible at trial may be considered.
- The confrontation-type protection that remains is a due-process right, not an absolute one. The client can cross-examine adverse witnesses unless the court finds good cause otherwise—and that right can be satisfied by Zoom or video, even over objection, under Zubiate.
- The full punishment range on the original charge is back in play. On adjudication, the court may sentence as if there had been no community supervision. A ten-year deferred can become a lengthy prison sentence. Where enhancements were waived as part of the original plea, confirm exactly what exposure remains.
- The judicial confession signed at the plea will substantiate guilt. Once the client pleads and confesses, the presumption of innocence is gone; the adjudication hearing is not a second chance to contest guilt of the underlying offense.
Concrete practice points:
- Put the trade-off in a written admonishment the client signs. Spell out that a motion to adjudicate is far easier for the State to win than a trial, and have the client acknowledge it. This protects the client’s understanding and protects you against a later ineffective-assistance claim.
- Counsel realistically on new-offense risk. Because a single new arrest, proven by a preponderance, can trigger adjudication, clients who are likely to pick up new allegations may be worse off with a long deferred term than with a shorter, capped alternative. Model the downside, not just the upside.
- Do not promise an in-person hearing. Advise the client that revocation and adjudication hearings may be conducted virtually and that objecting on confrontation grounds will not force an in-person setting.
- Preserve error anyway. Montgomery forecloses the Sixth Amendment argument in Texas, but the due-process presence and confrontation arguments remain live and were not decided here. Object under the Due Process Clause, build a record of any specific prejudice from the virtual format (muting, inability to communicate with counsel, degraded ability to cross-examine), and frame the objection around Morrissey/Gagnon good-cause and reliability, not Crawford.
- Fight the violations on reliability, not admissibility. Since hearsay will likely come in, shift the battle to weight: challenge the credibility and reliability of the State’s proof and press the good-cause requirement before the court dispenses with live testimony.
Would the U.S. Supreme Court Agree?
If a defendant took this issue up on a petition for certiorari, would the Supreme Court agree that the Confrontation Clause does not reach a Texas adjudication hearing? On balance, yes—the outcome is well supported by existing doctrine, and a textualist majority would likely find the result easy. But the deferred-adjudication wrinkle gives the question more life than it would have in an ordinary revocation, and that is worth understanding.
The doctrine points strongly toward agreement
Start with the two cases the Court has already decided. In Morrissey v. Brewer, 408 U.S. 471 (1972), the Court held that parole revocation “is not part of a criminal prosecution,” so “the full panoply of rights due a defendant” does not apply; instead, the Fourteenth Amendment supplies a flexible set of due-process protections, including a conditional right to confront adverse witnesses absent good cause. In Gagnon v. Scarpelli, 411 U.S. 778 (1973), the Court extended that reasoning to probation revocation. Neither case runs the confrontation right through the Sixth Amendment. Both locate it in due process, and both describe the interest at stake as “conditional liberty.” The Texas court’s analysis in Montgomery maps almost perfectly onto that framework.
The lower federal courts have been uniform. Every federal circuit to consider the question has held that the Sixth Amendment right to confrontation—and Crawford v. Washington, 541 U.S. 36 (2004)—does not apply to supervised-release or probation-revocation hearings, because those hearings are not “criminal prosecutions.” The confrontation right that does apply there is the narrower due-process right, codified for federal defendants in Rule 32.1(b)(2)(C), which lets the court admit hearsay after balancing the releasee’s interest in confrontation against the government’s good cause. There is, in other words, no circuit split pushing the Supreme Court toward extending Crawford into revocation proceedings; the consensus runs the other way.
A textualist Court would find the text decisive
The current Court’s confrontation jurisprudence is emphatically textualist and originalist. Crawford itself rejected reliability-based tests in favor of the original meaning of “witnesses against” the accused, and the Court reaffirmed that methodology as recently as its unanimous 2024 decision in Smith v. Arizona, 602 U.S. 779 (2024). But that same textualism cuts against expanding the Clause. The right exists “[i]n all criminal prosecutions,” and it protects the “accused” against “witnesses against him.” Judge Keel’s concurrence is written in exactly the register a textualist Court would find congenial: an adjudication respondent is not “accused,” the witnesses testify to supervision performance rather than “against” him, and the proceeding is not a “prosecution.” A Court that takes the words seriously is unlikely to read a conditional-liberty hearing into a clause expressly limited to criminal prosecutions.
Where the case is more vulnerable
The honest counterweight is Mempa v. Rhay, 389 U.S. 128 (1967). Because Texas deferred adjudication postpones both the finding of guilt and sentencing, the adjudication hearing is the point at which guilt is formally entered and punishment imposed—the very features that made the hearing in Mempa a “critical stage.” A creative petitioner would argue that a proceeding that ends in a first-ever adjudication of guilt and a sentence is functionally the culmination of the criminal prosecution, not a mere administrative revocation, and therefore should carry Sixth Amendment confrontation rights.
The likely response—and the reason the argument probably still loses—is that Mempa was a right-to-counsel case, and the Court has since been careful to treat the confrontation right as tied to the guilt-determining function of a trial. In Texas, guilt of the underlying offense is fixed at the plea and judicial confession; the adjudication hearing does not re-litigate it. No witness at that hearing testifies to prove the charged crime, so the specific harm the Confrontation Clause targets—conviction on untested testimonial accusations of the offense—is not present. Sentencing proceedings, moreover, have never been held to carry the full trial-type confrontation right. On that analysis, Mempa secures counsel at the hearing without transforming it into a “criminal prosecution” for confrontation purposes.
Bottom line
If the Supreme Court took the case, the most likely outcome is agreement with the Texas court on the narrow holding: the Sixth Amendment Confrontation Clause does not apply to a deferred-adjudication hearing. The doctrine (Morrissey, Gagnon), the uniform circuit law, and the Court’s own textualism all point the same way. The more interesting—and more winnable—fight for defendants is not whether Crawford applies, but whether the due-process confrontation and presence rights recognized in Morrissey and Gagnon were honored: whether there was good cause to dispense with live testimony, and whether a virtual hearing meaningfully allowed the defendant to see, hear, cross-examine, and participate. That is where the Supreme Court has left room to maneuver, and it is where defense energy should go.
Principales conclusiones
- The holding: The Sixth Amendment Confrontation Clause does not apply to a Texas motion to adjudicate guilt and revoke community supervision. Montgomery v. State, Nos. PD-0581-22 & PD-0582-22 (Tex. Crim. App. July 2, 2026).
- Why: An adjudication hearing is not a “criminal prosecution,” the defendant is no longer “accused,” community supervision is a privilege, and the burden is only a preponderance under relaxed evidentiary rules.
- What survives: A due-process right to confront adverse witnesses unless the court finds good cause—satisfiable by video under Ex parte Zubiate.
- For your practice: Admonish clients in writing about the reduced protections at adjudication before they accept deferred, and litigate revocations on due-process and reliability grounds, not Crawford.
- On appeal to SCOTUS: The confrontation holding is likely safe; the live question is due-process presence and good cause—which Montgomery did not decide.
