Villarreal v. Texas

    Issues

    Does a trial court’s order that prevents a defendant and their attorney from discussing the defendant’s ongoing testimony during an overnight recess violate the defendant’s Sixth Amendment right to counsel?

    Oral argument:
    October 06, 2025
    Court below:
    Texas Court of Criminal Appeals

     

    This case asks the Supreme Court to decide whether a trial court may bar defense counsel from discussing a defendant’s ongoing testimony during an overnight recess. Villarreal argues that this restriction violates the Sixth Amendment right to counsel and the attorney-client privilege. Texas counters that the restriction is a qualified order that does not infringe on constitutionally protected communications. The outcome of this case has profound implications for the fairness of trials and defendants’ testimony. 

    Questions as Framed for the Court by the Parties

    Does a trial court’s order that prevents a defendant and their attorney from discussing the defendant’s ongoing testimony during an overnight recess violate the defendant’s Sixth Amendment right to counsel?

    Facts

    David Asa Villarreal was on trial for allegedly murdering his live-in boyfriend, Aaron Estrada. ,   At trial, Villarreal was the sole defense witness and pleaded self-defense.  The day before Villarreal’s testimony, the trial judge informed the parties that proceedings would end early the next day because the judge had prior commitments.  The following day, Villarreal began his direct testimony around noon. Approximately one hour later, the judge called a recess.

    Without request from the prosecution, the trial judge issued a no-conferral court order. The judge ordered that Villarreal refrain from discussing his testimony with counsel during the recess. The judge explained that ordinarily counsel is not allowed to confer with a client giving testimony while on the stand and asked counsel to pretend that Villarreal was on the stand during this overnight period. The judge noted that Villarreal could speak with his attorneys but placed the burden on his attorneys to ensure that they did not discuss his testimony with him. One of Villarreal’s attorneys asked a clarifying question to confirm if they were permitted to confer with their client. The judge advised that discussions about other matters, such as sentencing, were permitted. One defense attorney acknowledged this instruction. Another defense attorney objected that this was a violation of Villarreal’s Sixth Amendment rights, which prohibit the deprivation of effective assistance of counsel by court interference. After the 24-hour recess, the trial resumed and there was no indication that Villarreal or his attorneys conferred. During a seven-minute break in Villarreal’s cross-examination, the judge reiterated the no-conferral order. Villarreal’s counsel did not object. Villarreal was found guilty of murder and sentenced to sixty years in prison.

    Villarreal appealed his conviction. The San Antonio Court of Appeals affirmed. The Texas Court of Criminal Appeals granted discretionary review to examine whether the trial court’s restriction violated Villarreal’s right to counsel. The Texas Court of Criminal Appeals held that the trial court did not violate the Sixth Amendment because the order limited only conversations about the defendant’s ongoing testimony. The Court reasoned that the nature of the restricted communication was narrow and intended to prevent testimony coaching. The Court also noted that the judge did not ban consideration of the ongoing effects of the defendant’s testimony, thus allowing attorney-client discussions around sentencing. The Texas Court of Criminal Appeals affirmed the San Antonio Court of Appeals judgment.

    Villarreal petitioned the Supreme Court of the United States for a writ of certiorari, seeking review of whether defendants and their counsel can be prohibited from discussing ongoing testimony during an overnight recess. On April 7, 2025, the Court granted a review of this question.

    Analysis

    SCOPE OF THE RIGHT TO COUNSEL

    Villarreal argues that the trial court’s order limiting discussion of his testimony during an overnight recess violates his Sixth Amendment right to assistance of counsel. Villarreal argues that this case falls squarely within Geders v. United States.  Villarreal explained that in Geders, overnight recesses were found to be a key time for the defense team to regroup, evaluate the day’s events, and make decisions about future proceedings. Villarreal thus argues that this case stands for the principle that a defendant has a right to unrestricted access to counsel overnight.Villarreal also relies on Perry v. Leeke, where the Court held that a no-conferral order for a fifteen-minute daytime recess did not violate the Sixth Amendment. Villarreal points to the reasoning in Perry that meaningful private conversations would not occur during such a brief recess. Thus, Villarreal contends that the timing of the recess is constitutionally significant in determining whether Sixth Amendment rights have been abridged. Villarreal argues that when the prohibited recess is overnight, as was the case here, the no-conferral order is unconstitutional. Although Geders and Perry recognized the possibility of misconduct or defendant coaching during an overnight recess, Villarreal notes that both cases indicate that the mere possibility of misconduct does not justify restricting the defendant’s right to meet with counsel overnight.

    Villarreal further argues that the text of the Sixth Amendment does not restrict counsel’s assistance to specific subjects or to certain times of day. Villarreal contends that Texas fails to show that “assistance” in 1791 was understood to exclude discussions of testimony and overnight conversations. Villarreal notes that, because defendants were not permitted to testify in their own cases until the late nineteenth century, the issue posed here would not have arisen at the time of the Founding. Villarreal points to the Crimes Act of 1790, which specifically provided for counsel to have access to defendants charged with serious crimes at all “seasonable” hours. Villarreal maintains that, according to historical definitions, seasonable was understood to mean opportune. History and tradition, according to Villarreal, dictate that there are neither limits on when defendants can meet with their counsel nor on the topics they can discuss.

    In response, Texas counters that the distinction between Geders and Perry is not the duration of the recess but the nature of the conversations being restricted.  Texas argues that the Court’s decision in Geders only invalidated a total ban on overnight conferrals between defendants and their counsel but did not address whether limitations are permissible in other situations.  Texas relies on the reasoning in Perry to argue that orders limiting communication specifically about ongoing testimony do not violate the right to counsel. Texas contends that even though the recess in Perry was much shorter than an overnight break, the Court’s acceptance of such orders should extend to longer recesses. Texas distinguishes the facts here from Geders and Perry by noting that the trial court order did not forbid all communications between Villarreal and his counsel. Texas asserts that the reasoning in Perry focused on the topics of discussion during recesses rather than the duration of the recess. Texas maintains that complete bans on overnight conferral violate the right to counsel, not because of the length, but because other trial-related matters will be discussed during this period. Texas argues that the distinction between ongoing testimony and other matters exists because the two categories are awarded different protection by the Constitution. Accordingly, Texas asserts that ongoing testimony is not protected.

    Texas further argues that the Sixth Amendment’s Counsel Clause, as originally understood, guaranteed only the right to retain counsel, not unrestricted access to an attorney at all times. Texas contends that the seasonable hours qualification of the Crimes Act of 1790 illustrates that counsel’s contact with the defendant could be restricted. Texas explains that while seasonable can be defined as opportune, it can also be defined as “done at a proper time.” Texas asserts that overnight hours fall into this definition implies that certain hours were improper, such as overnight hours. Texas argues that even if the Act was meant to allow defendants unlimited access to counsel, it does not preclude courts from issuing orders to prevent attorneys from coaching testimony during extended breaks.Texas also maintains that the physical separation of counsel from their clients in early American courtrooms illustrates that defendants were not given unlimited access to their attorneys.

    ATTORNEY-CLIENT COMMUNICATIONS

    Villarreal contends that qualified conferral orders impede defendants from obtaining essential legal advice. Villarreal also posits that attorney-client conversations about testimony are necessary to prevent perjury. Villarreal explains the importance of discussing testimony overnight, especially if recantation or corrections to the defendant’s testimony are necessary. Additionally, Villarreal asserts that lawyers can use overnight recesses for purposes not directly related to testimony. For example, Villarreal argues that attorneys might need to remind their clients of testimony procedures and conventions, such as making eye contact or sitting up straight.

    Villarreal argues that the attorney-client privilege is impeded by orders prohibiting overnight discussion. Villarreal asserts that attorneys would be required to disclose privileged communications to the court, so that the court could determine whether their discussions with the defendant involved testimony as opposed to trial strategy. Consequently, Villarreal contends that the defendants could not candidly converse with their attorneys.

    Texas argues that a qualified order only partially restricts attorney-client communication during a recess. Texas contends that such court orders support robust client-counsel communication, allowing explanations of court rulings, excluded evidence, and perjury risks. Texas points to the definitions of consideration and discussion to argue that consideration and discussion of testimony are distinct. Texas asserts that consideration involves carefully weighing a matter, whereas discussion suggests consideration of a question and informal debate. Thus, Texas posits that discussion may include consideration, but consideration does not need to involve discussion. For example, Texas explains that when deciding whether to reconsider a plea bargain, the attorney and defendant would be able to consider the defendant’s prior testimony. However, Texas maintains that this is not impermissible coaching because the testimony was already delivered.

    Texas further argues that if compliance with an order is infeasible, attorneys can raise their concerns with the court without violating the attorney-client privilege. Texas asserts that counsel would not need to expose the contents of privileged communication but could instead explain why they were having trouble complying with the qualified conferral order. Texas further notes that, if needed, the trial court could conduct an in camera review to safeguard the privilege while reconsidering its order.

    Discussion

    FREE AND FAIR TRIALS

    A group of former state and federal judges (collectively “Retired Judges”), in support of Villarreal, assert that there is no reliable way to distinguish discussions of testimony from general discussions of trial strategy.  Thus, Retired Judges explain that every court would need to create its own distinctions between these discussions and explain them during each criminal trial. Retired Judges contend that this approach would be unduly burdensome on criminal courts, which would make proceedings slower and more difficult. The National Association of Criminal Defense Lawyers (“NACDL”) argues that orders preventing attorneys from discussing testimony during an overnight recess with their clients may also discourage attorneys from discussing relevant information that is only indirectly related to testimony.  NACDL further contends that these orders may inhibit counsel from clarifying legal terms and providing reassurance to their clients. Thus, NACDL asserts that limiting discussions of testimony will make it harder for attorneys to effectively represent their clients. 

    Ohio and fourteen other states (collectively “Ohio et al.”), in support of Texas, counter that the right to counsel should not override state rules designed to protect the fairness and integrity of trials. Ohio et al. maintain that states have sovereign rights to protect the integrity of their criminal trials by setting procedures that prevent witnesses from discussing testimony with others. Ohio et al. contend that the right to counsel is not absolute and that allowing defendants to consult their attorneys at any time during testimony would disrupt states’ control over trial proceedings.  Ohio et al. further assert that letting courts limit such discussions serves the defendant’s best interests because, without these limits, courts might deny overnight recess requests to avoid improper testimony discussions. Ohio et al. argue that these denials may cause even more harm to defendants.

    EFFECTS ON TRIAL TESTIMONY 

    The Constitutional Accountability Center (“CAC”), in support of Villarreal, argues that prohibiting a defendant from discussing testimony overnight affects defendants’ ability to testify.  CAC contends that denying defendants full access to counsel during a long recess impairs the historical purpose of the Sixth Amendment because a long recess is when defendants, who are generally unfamiliar with the legal system, may need counsel the most.  The National College for DUI Defense (“NCDD”) further explains that preventing defendants from consulting their attorneys overnight may undermine their opportunity to present their case through testimony.  NCDD maintains that defendants with no courtroom experience require additional guidance during the emotional process of testifying. NCDD argues that if testimony cannot be discussed with defendants, attorneys will struggle to provide emotional support, clarify legal issues, and help maintain composure. NCDD asserts that this undermines the trust essential to attorney-client relationships and, in turn, impedes effective advocacy for defendants.

    Ohio et al., in support of Texas, argue that allowing witnesses to consult with their lawyers during ongoing testimony would undermine the truth-seeking function of the adversarial system.  Ohio et al. explain that witnesses should testify truthfully based on their own memory and that lawyer coaching undermines reliable testimony. Ohio et al. posit that letting defendants consult attorneys’ mid-testimony could lead them to adjust their story based on previous witness testimony or attorney advice, thus harming their credibility. The United States government, in support of Texas, adds that even well-intentioned mid-testimony discussions risk tainting the truth-seeking process.  The United States argues that prohibiting such consultations is crucial for uncovering falsehoods and preventing the grave issue of witness coaching.

    Conclusion

    Authors

    Written by:    Brenda Narvaez and Ria Panchal

    Edited by:      Alexandra Fertig

    Additional Resources