Villarreal v. Texas · ¶34

We conclude that Texas is correct. Underlying Perry are two premises. One is factual and the other legal, but both are content based. First, while Perry recognizes that a testifying defendant has a constitutional right during a midtestimony recess to consult with his lawyer about a wide range of topics—“the availability of other witnesses, trial tactics, or even the possibility of negotiating a plea bargain,” id., at 284—it posits that a short break in a defendant's appearance on the witness stand is unlikely to feature such topics. Instead, such a pause will likely contain discussion of “nothing but the testimony.” Ibid. So, then, Perry's second (correlative) premise emerges: A midtestimony defendant does not have a protected Sixth Amendment right to discuss his ongoing testimony with his lawyer. Put differently, where no nontestimony topics are involved, the Sixth Amendment provides…

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