BEECHER MONTGOMERY, Appellant v. THE STATE OF TEXAS, Appellee
NOS. PD-0581-22 & PD-0582-22
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
July 2, 2026
ON APPELLANT‘S PETITION FOR DISCRETIONARY REVIEW FROM THE SECOND COURT OF APPEALS TARRANT COUNTY
RICHARDSON, J., delivered the opinion of the Court in which SCHENCK, P.J., YEARY, KEEL, and PARKER, J.J joined. KEEL, J., filed a concurring opinion in which SCHENCK, P.J., YEARY, and PARKER, J.J., joined. PARKER, J., filed a concurring opinion in which SCHENCK, P.J., and KEEL, J., joined. WALKER, J., filed a dissenting opinion. FINLEY, J. filed a dissenting opinion. NEWELL and MCCLURE, J.J. dissented.
Facts
Appellant was indicted for theft from a person and evading arrest with a vehicle in two separate cause numbers. (1 CR 7).1 He pled guilty to both (including signing a judicial confession as part of his plea admonishments) and moved the trial court to sentence him. (1 CR 49-53). On June 30, 2020, he was placed on Deferred Adjudication for ten years for both cases. (1 CR 61). As part of the plea agreement, the State did not pursue habitual-offender enhancement. (1 CR 61).
In August of 2020, after Appellant was arrested for several new offenses, the State filed a “Petition to Proceed to Adjudication” against Appellant for violating the terms of his agreement. (1 CR 69). On October 13, 2020, the State amended its
On October 14, 2020, Appellant filed a written “Objection to Virtual Proceeding” under the Equal Protection and Due Process clauses. (1 CR 79). On January 6, 2021, following several resets, a virtual Zoom hearing was held on the State‘s petition. (3 RR 1). At the beginning of the hearing, Appellant re-urged his written “Objection to Virtual Proceeding.” (3 RR 8-10). On top of the written objection, Appellant again argued that the virtual setup overly burdened attorney-client communication, and that he had the right to be present in order to effectively confront witnesses. (3 RR 12-14). Appellant also pointed out the incongruity with the State‘s position in another case (where the State advocated for an in-person murder trial to protect confrontation rights) while Appellant himself was being forced against his objections to a virtual hearing. (3 RR 12-14). After hearing Appellant‘s arguments, the trial court overruled Appellant‘s objection but granted him a running objection “throughout all of the hearings.” (3 RR 15-16). Nevertheless, Appellant renewed his objection one last time during an oral motion for a directed verdict, which the trial court denied. (3 RR 89).
On direct appeal to the Second Court of Appeals, Appellant argued that the virtual hearing violated his right to confront witnesses under the Confrontation Clause, and that he was denied Due Process under the Fourteenth Amendment when he was not allowed to be physically present at his own hearing. App. Br. to Ct. App., Montgomery v. State, Nos. 02-21-00002-CR & 02-21-00003-CR, 2022 WL 5240472, at *8-18 (Tex. App.—Fort Worth Aug. 21, 2024).
The Court of Appeals interpreted Appellant‘s Due Process claim as one that focused on the technical glitches rather than an objection to the virtual platform itself. Id. at *3.
His true complaint, however, appears not to be the use of Zoom in general but that there were several instances in which the virtual technology utilized was inadequate and therefore did not truly provide
a vehicle in which Appellant could be present at this hearing and sentencing.
Id. at *3 (internal quotes omitted; emphasis in original). Finding no significant impairment in his virtual participation, the lower appellate court ruled that Appellant failed to demonstrate any violation of Due Process:
Accordingly, we conclude that the virtual hearing on the State‘s petition to proceed to adjudication—though not seamless—was not so inadequate that Montgomery was not permitted to participate in the hearing on the State‘s petition to proceed to adjudication.
The lower appellate court also found no violation under the Confrontation Clause. Id. at *5. It reasoned that “the Confrontation Clause does not apply to a revocation proceeding because that is not a stage of a criminal prosecution” for the purpose of the
On petition for discretionary review, Appellant continues his arguments that the denial of his objection to the virtual proceeding violated both his rights (1) under the
The Confrontation Clause, Criminal Prosecutions, and Probation.
The
The resulting question before us today is whether a motion to enter adjudication of guilt from a deferred adjudication followed by a motion to revoke probation lies within a “criminal prosecution” as understood by the
Community Supervision is not a right.
In a typical criminal prosecution, the defendant is accused of a criminal offense and stands to lose a significant liberty interest if found guilty beyond a reasonable doubt. The liberty interest in question is not an interest awarded to him by law, but one that is naturally his by constitutional default. See Gagnon v. Scarpelli, 411 U.S. 778, 781-82 (1973) (finding federal probation revocation is not a stage of criminal prosecution after the similarity to parole: “Revocation [of parole] 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.” (quoting Morrissey v. Brewer, 408 U.S. 471, 480 (1972))).
However, community supervision (which includes deferred adjudication) is a “privilege, not a right.” Speth v. State, 6 S.W.3d 530, 533 (Tex. Crim. App. 1999). “The decision whether to grant probation is wholly discretionary and nonreviewable.” Speth, 6 S.W.3d at 533 (citing Flourney v. State, 589 S.W.2d 705, 707 (Tex. Crim. App. 1979)). The trial court is essentially extending “clemency” to the
Nevertheless, a hearing on the State‘s motion to enter adjudication of guilt and revoke community supervision differs from typical federal probation revocation proceedings. As allowed by statute, Texas judges have discretion to withhold a finding of guilt by granting deferred adjudication.
Once the plea proceeding has concluded, however, the gravamen of any motion to enter an adjudication of guilt followed by a revocation of probation is different. The trial court focuses on whether the defendant failed to perform the terms of his agreement. If the trial court finds a violation of the terms of his agreement, the trial court decides whether to enter a finding of guilt. Unlike the protections guaranteed in a criminal case, the burden of proof is by a preponderance of the evidence. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993).
Conclusion
We agree with the court of appeals below. The trial court did not err in overruling Appellant‘s objection under the Confrontation Clause because it did not apply to an adjudication of guilt and probation revocation hearing. Thus, we affirm.
Filed: July 2, 2026
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