A jury convicted Appellant, David Asa Villarreal, of murder with a repeat offender enhancement and sentenced him to confinement for sixty years. Appellant argues the trial court erred by limiting his ability to confer with counsel during an overnight recess in violation of his Sixth Amendment right to counsel. Specifically, when a court adjourns for the day with the defendant still on the stand, does a trial judge’s sua sponte order that defense counsel could confer with defendant on everything except his ongoing testimony violate the defendant’s Sixth Amendment right to counsel? Not in this case. We therefore affirm the judgment of the Fourth Court of Appeals. The United States Supreme Court placed two guideposts on whether a trial court’s order preventing a defendant from conferring with counsel when the defendant is still on the witness stand violates the Federal Constitution’s Sixth Amendment right to counsel. A no-conferral order during a 15-minute recess does not violate the Sixth Amendment right to counsel. Perry v. Leeke, 488 U.S. 272, 284–85 (1989). But a no-conferral order during an overnight recess violates this constitutional right. Geders v. United States, 425 U.S. 80, 91 (1976). This case provides a twist with the trial judge issuing a limited no-conferral order during an overnight recess. The order restricted Appellant’s ability to confer with counsel regarding his ongoing testimony, while allowing discussion on all other aspects of the criminal proceeding. This is a case of first impression at our Court. Our sister state supreme courts have generally agreed that such a situation does not violate the right to counsel.[1] Yet, federal circuits have reached the opposite conclusion.[2] We side with our sister states and hold that Appellant’s Sixth Amendment right to counsel was not violated under these facts. Background The day before Appellant began his direct testimony, the trial judge warned the parties that there would be a hard stop at 1:00pm the following day due to the judge’s prior administrative commitments. [3] Appellant began his direct testimony just before noon. [4]About an hour later, while direct testimony was still ongoing, the judge recessed the trial.[5] After dismissing the jury, the following dialogue occurred: THE COURT: Mr. Villarreal, we’re in an unusual situation. You are right in the middle of testimony. Normally your lawyer couldn’t come up and confer with you about your testimony in the middle of the trial and in the middle of having the jury hear your testimony. And so I’d like to tell you that you can’t confer with your attorney but the same time you have a [Sixth] Amendment right to talk to your attorney. So I’m really going to put the burden on [Defense Counsel #1] to tell you the truth. [Defense Counsel #1] and [Defense Counsel #2], too, as well. I’m going to ask that both of you pretend that Mr. Villarreal is on the stand. You couldn’t confer with him during that time. Now, Mr. Villarreal, if — puts us in an odd situation. But I believe if you need to talk to your attorneys, I’m not telling you, you can’t talk to them. But I’m going to rely on both [Defense Counsel #1] and [Defense Counsel #2] to use your best judgment in talking to the defendant because you can’t — you couldn’t confer with him while he was on the stand about his testimony. So I’m going to leave it to both of your good judgment of how you manage that, if for some reason he believes that he needs to confer. [DEFENSE COUNSEL #1]: All right. So just so I am clear and don’t violate any court orders, that — because he is still on direct and still testifying, that it is your ruling that we cannot confer with our client? THE COURT: Let me help you with that. For instance, suppose we go into a sentencing hearing and you need to start talking to him about possible sentencing issues, you can do that. Does that make sense? I don’t want you discussing what you couldn’t discuss with him if he was on the stand in front of the Jury. [DEFENSE COUNSEL #1]: Okay. THE COURT: His testimony. I’m not sure whatever else you’d like to talk with him about while he’s on the stand. But ask yourselves before you talk to him about something, is this something that — manage his testimony in front of the jury? Does that make sense to you? [DEFENSE COUNSEL #1]: Sure, it does. [DEFENSE COUNSEL #2]: We aren’t going to talk to him about the facts that he testified about. THE COURT: All right. Fair enough. But at the same time – I’m going to put the burden on the lawyers, not on him, because he has a constitutional right to confer with you. At the same time, all lawyers are under — they’re under different rules than the defendants are. [DEFENSE COUNSEL #1]: Certainly. THE COURT: And not that I’m saying this about Mr. Villarreal, but, you know, if - – for instance, his attorney-client privilege is safe, but if any defendant or potential client or something like that, comes to a lawyer and talks about committing a future crime, there’s no privilege – [DEFENSE COUNSEL #1]: Sure. THE COURT: — for that. And so I’m just using that as an analogy. [DEFENSE COUNSEL #1]: Sure. THE COURT: And you’re going to have to decide, if he asks you any questions and such, is this something that is going to be considered to be conferring with him on the witness stand while the jury is there or not. [DEFENSE COUNSEL #1]: Okay. All right. I understand the Court’s judgment and just — just for in the future, I’m just going to make an objection under the Sixth Amendment that the Court’s order infringes on our right to confer with our client without his defense. THE COURT: Objection noted. All right. Folks, then we will see you-all again tomorrow.[6] The trial judge reconvened the trial approximately 24 hours later. There is nothing in the record that suggests that Appellant conferred or had an opportunity to confer with counsel the morning before the trial restarted. Nor is there anything in the record that shows the judge inquiring if Appellant and his counsel were indeed able to confer on matters outside his testimony during the 24-hour recess. Later that day, while Appellant was being cross-examined, the court took a seven-minute recess. The judge stated “And, Mr. Villarreal, you’re still on the stand so the same admonishments I gave your attorney yesterday still apply.”[7] There were no objections. Appellant was found guilty, and a divided court of appeals affirmed his conviction. We granted Appellant’s petition for discretionary review. Standard of Review The court below also differed on whether to apply an abuse of discretion standard or a de novo standard in reviewing whether the trial court’s limited no-conferral order violated Appellant’s Sixth Amendment right to counsel. We need not decide at this time what the appropriate standard of review is for appellate courts in evaluating this type of issue in the future.[8] Because this application-of-law-to-fact question is a “clearly defined issue[] of first impression,” we apply a de novo review. Henderson v. State, 962 S.W.2d 544, 551 (Tex. Crim. App. 1997) (citing Austin v. State, 934 S.W.2d 672, 674-675 (Tex. Crim. App. 1996)). Discussion Our federal constitution guarantees “in all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defen[s]e.” U.S. Const. amend. VI. “Designed to remedy any imbalance in our adversary system, the Sixth Amendment promises that an accused is entitled to defense counsel in all criminal prosecutions.” Hidalgo v. State, 983 S.W.2d 746, 752 (Tex. Crim. App. 1999). This constitutional right encompasses all critical stages of the criminal proceeding. Gilley v. State, 418 S.W.3d 114, 120 (Tex. Crim. App. 2014). The Supreme Court in Geders and Perry planted the guideposts on what restrictions on communications between a defendant and his counsel are constitutionally tolerable. A blanket prohibition on conferring with counsel during an overnight recess (17-hours) when the defendant is testifying on the stand is unconstitutional. Geders, 425 U.S. at 91. But a trial court may restrict communication between a defendant and counsel during a short recess (15-minutes) where presumably the only topic that would be discussed is the ongoing testimony. Perry, 488 U.S. at 284–285. At first glance, the length of the recess appears to be the determining variable between Geders and Perry.[9] However, the type of communication being restricted is the true controlling factor. [10]The Supreme Court has made clear that “when a defendant becomes a witness, he has no constitutional right to consult with his lawyer while he is testifying.” Perry, 488 U.S. at 281. But a court may not block “matters that the defendant does have a constitutional right to discuss with his lawyer, such as the availability of other witnesses, trial tactics, or even the possibility of negotiating a plea bargain.” Id. at 284. Thus, the ultimate inquiry becomes whether the restrictive conferral order would “meaningfully interfere with constitutionally protected communication.” United States v. Triumph Cap. Grp., Inc., 487 F.3d 124, 131 (2nd. Cir. 2007). Neither Geders nor Perry addressed the scenario at hand—restricting only discussions of a defendant’s ongoing testimony during an overnight recess. Reviewing these cases reveals the two interests at play are preserving the defendant’s right to assistance of counsel and ensuring the truth-seeking function of a trial. But the Supreme Court has placed a thumb on the scale in favor of preserving the assistance of counsel when it conflicts with the risk of “improper coaching.” Geders, 425 U.S. at 91. Right to Assistance of Counsel The first interest is the defendant’s right to assistance of counsel. This is fundamental and essential to a fair trial within our adversarial system of justice. Gideon v. Wainwright, 372 U.S. 335, 343 (1963). A defendant “requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.” Id. at 345 (quoting Justice Sutherland’s words describing a defendant’s need for counsel, Powell v. Alabama, 287 U.S. 45, 68–69 (1932)). Occupying the witness stand as a defendant cannot bar the total assistance of counsel during an overnight recess because trial preparation does not suddenly cease when the recess is called, and trial preparation does not resume only when the judge says proceed the following day. Trial preparation is a continuous affair. When the government is attempting to take one’s liberty, it may not sever the relationship between defendant and his counsel overnight, only to reconnect it the next day. “Such recesses are often times of intensive work, with tactical decisions to be made and strategies to be reviewed.” Geders, 425 U.S. at 88. We recognize “the defendant’s right to unrestricted access to his lawyer for advice on a variety of trial-related matters that is controlling in the context of a long recess.” Perry, 488 U.S. at 284. The type of “trial-related matters” that the Supreme Court expressly mentioned counsel must be able to confer with his client about include: “information made relevant by the days testimony;” avenues of “inquiry along lines not fully explored earlier;” “the significance of the day’s events;” “the availability of other witnesses;” “trial tactics;” and “the possibility of negotiating a plea bargain.” Geders, 425 U.S. at 88; Perry, 488 U.S. at 283. What this non-exhaustive list shows is that a defendant must be able to confer with counsel about the derivative effects of the ongoing testimony. “Consideration” of the testimony must be allowed in order to foster the constitutionally protected communications between counsel and defendant. The Truth-Seeking Function of the Trial The second interest is ensuring trial courts achieve the truth-seeking function within our adversarial system. “[I]t is simply an empirical predicate of our system of adversary rather than inquisitorial justice that cross-examination of a witness who is uncounseled between direct examination and cross-examination is more likely to lead to the discovery of truth than is cross-examination of a witness who is given time to pause and consult with his attorney.” Perry, 488 U.S. at 282. Thus the “trial-related matters” that counsel may confer about overnight with his client does not include counsel discussing a defendant’s ongoing testimony. It is why a defendant “has no constitutional right to consult with his lawyer while he is testifying.” Id. at 281. Put another way, counsel may not manage his client’s testimony. He may not coach the testimony to course-correct a disastrous direct examination to brace against the impact of the upcoming cross-examination. “Once the defendant places himself at the very heart of the trial process, it only comports with basic fairness that the story presented on direct is measured for its accuracy and completeness by uninfluenced testimony on cross- examination.” Id. at 283. Discussing or conferring about the ongoing testimony is distinct from taking “consideration” of the ongoing testimony. The former disrupts the truth-seeking function of trial; the latter allows counsel to constitutionally advise his client during the overnight recess. To illustrate, suppose a defendant is being unpersuasive and inconsistent on the stand. An overnight recess is called before the examination is completed. Counsel telling the defendant what to say and how to say it in response to his and the prosecutors upcoming questions the following day is properly prohibited. However, counsel advising the defendant to take the plea deal after the earlier poor performance is constitutionally protected. A narrow trial order on prohibiting coaching passes constitutional muster. However, an insufficiently limited order might preempt counsel and defendant’s conversations about other matters, thereby depriving the defendant of legal representation at a critical stage. Application Applying these principles to the instant situation, we conclude that the trial judge’s order did not intrude upon constitutionally protected communications between Appellant and counsel during the overnight recess. The following factors drive our narrow holding. First, the language used by the judge complied with Perry. He cabined his admonishments to conferring about the ongoing testimony. From the start, the judge framed the issue as discussing the ongoing testimony. Addressing Appellant, the judge stated, “Normally your lawyer couldn’t come up and confer with you about your testimony in the middle of the trial and in the middle of having the jury hear your testimony.” Addressing Appellant’s two attorneys, the judge explained that counsel were not to “confer with [Appellant] while he was on the stand about his testimony.” He continued, “I don’t want you discussing what you couldn’t discuss with him if he was on the stand in front of the Jury. His testimony.” The judge further clarified, “But ask yourselves before you talk to him about something, is this something that — manage his testimony in front of the jury?” We interpret this as a limited order. The order only restricted discussions of Appellant’s ongoing testimony and nothing else. Constitutionally protected communications were not targeted. The judge’s explanation about managing the testimony in front of the jury supports the conclusion that the judge was focused on preserving the truth-seeking function of trial by preventing coaching—something a trial court may prevent. The judge did not say anything to prevent consideration of the ongoing effects of the testimony. “For instance, suppose we go into a sentencing hearing and you need to start talking to him about possible sentencing issues, you can do that.” That language allowed counsel to discuss whatever issues for the potential punishment phase that arose from Appellant’s testimony until that point (and everything else that occurred so far at the trial). The sentencing example used by the judge to describe what type of communications were permissible was similar to the of ability to negotiate a plea, a topic of conversation expressly allowed by Perry. Second, counsel affirmed that he understood the trial court’s order. He responded “Sure, it does,” when asked by the judge if what he said made sense. Just before counsel lodged a Sixth Amendment objection, lead counsel once again stated that he understood the trial court’s judgment. This supports the conclusion that counsel were still able to have constitutionally permissible communications with Appellant that afternoon, evening, and the following morning, before the trial resumed with Appellant on the stand. However, Appellant’s second counsel was mistaken when stating that he was not “going to talk to him about the facts that he testified about.” That is an incorrect interpretation of Geders and Perry. Counsel must be allowed to discuss the derivative effects of the testimony. Again, for example, if the ongoing testimony revealed information about a new witness, counsel must be able to ask the defendant informational questions to effectively assist their client. But, after this improper statement, the judge continued explaining what is and what is not allowed. And the first chair repeatedly affirmed that he understood the court’s order. Third, there is nothing in the record that suggests Appellant and his counsel were unable to confer on constitutionally permissible matters during the overnight recess. Fourth, the following day, when a brief recess occurred while Appellant was being cross-examined, the judge stated, “you’re still on the stand so the same admonishments I gave your attorney yesterday still apply.” Appellant’s counsel did not object. This suggests that counsel understood that the judge’s order only prohibited conferring about ongoing testimony. Fifth, the absence of a motion for a new trial that documented any potential communication hinderances between counsel and Appellant is another data point against the conclusion that constitutional communications were desired but were prohibited. Sixth, the context of the recess militates in favor of the order being constitutional. It was the judge himself, with his prior scheduled engagement, that caused the recess to occur during the middle of the defendant’s testimony. And it was the judge himself that initiated the limited-conferral order. The State was not involved in this situation. There was no prodding by the prosecution to restrict Appellant’s communications with counsel. Certainly, it would be best to allow a defendant to complete his direct and cross- examination within the same day to avoid this issue. But that is not always possible. The judge threaded the needle with the right to counsel and the need to protect the integrity of the trial. Under these facts, there was no Sixth Amendment right to counsel violation. Conclusion We hold the trial judge’s sua sponte restriction on counsel discussing Appellant’s ongoing testimony during an overnight recess did not violate his Sixth Amendment right to counsel. We affirm the judgment of the court of appeals. DELIVERED: October 9, 2024 PUBLISH
