Texas Stamp


PD-0048-20 06/17/2020

"The court of appeals erred in holding that the trial court properly limited the appellant’s ability to consult with trial counsel during an overnight recess in violation of the appellant’s Sixth Amendment right to counsel."

The trial court recessed Villarreal’s jury trial after Villarreal had completed some, but not all, of his testimony at the guilt phase. The judge cautioned Villarreal’s attorneys that, over the overnight recess, they should not confer with Villarreal about anything they would be prohibited from discussing while he was on the witness stand. The judge recognized that Villarreal had a constitutional right to confer with counsel about other matters and clarified that counsel could, for instance, discuss possible issues in the sentencing phase. Counsel indicated they understood this limitation but nevertheless objected that it violated Villarreal’s Sixth Amendment right to counsel. The trial court overruled the objection. Villarreal was convicted.

On appeal, he raised the same Sixth Amendment challenge. A majority of the court of appeals held that the trial court had discretion to limit counsel’s discussions with Villarreal as it did. The majority explained that because a defendant has no constitutional right to consult with his attorney “while he is testifying” and because the judge “put the onus on counsel to ensure any discussions avoided the topic of Villarreal’s testimony,” there was no Sixth Amendment violation. The dissent contended this was not a matter of trial court discretion. It believed the trial court’s limitations were much broader or at least would have a broader effect. It read Geders v. United States, 425 U.S. 80 (1976), as requiring unfettered access to counsel for long recesses like an overnight break despite the fact that some discussions would “inevitably include some consideration of the defendant’s ongoing testimony.” The dissent argued in the alternative that the trial court abused its discretion by imposing limitations in the absence of any request from the State.

Villarreal highlights that this is an issue of first impression in Texas. He argues that the limitation on his ability to consult with counsel is not appreciably different from that in Geders and notes the dissent’s view that the majority applied the wrong standard of review.


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