

 







IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-1621-10



RAYMOND DEAN LACKEY, Appellant

v.


THE STATE OF TEXAS




ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
FROM THE SIXTH COURT OF APPEALS

FANNIN  COUNTY



 Hervey, J., filed a dissenting opinion in which Meyers and Keasler, JJ.,
joined.

DISSENTING OPINION


	I disagree with the disposition of this case, and I write separately to explain my
reasoning.  Today, a majority of the Court uses our rules of procedural default to avoid
reaching the merits of the State's appeal, and in doing so, they also further confuse bench
and bar regarding the applications of the rules for error preservation.
	This Court's jurisprudence in the area of judicial authority and qualifications has
been inconsistent up to this point, and as a result, uncertainty has been created where none
should exist.  Unfortunately, today the majority continues that trend despite correctly
identifying the problem.  See Maj. Op. at 9 n.19 (noting that we have found questions
involving judicial qualifications and authority ripe for reexamination).
	As early as 1851, the Texas Supreme Court addressed the impact of a state
constitutional provision disqualifying a judge from presiding.  See Garrett v. Gaines, 6
Tex. 435, 447-48 (1851).  In discussing that provision, the Court stated, "This prohibition
does not divest the court of jurisdiction, but personally incapacitates the judge from
sitting for the purpose of hearing and determining the cause on its merits, or from making
any order which would prevent the cause from being heard and determined on its merits." 
Id.  Later, the Court of Criminal Appeals held that if a constitutionally disqualified judge
purports to preside and render a judgment in a trial matter, then "[t]he trial was a nullity,
the judgment void, and the cause stands upon the docket of the district court as if the
proceedings complained of in the record had not occurred."  Abram v. State, 31 Tex.
Crim. 449, 452, 20 S.W. 987, 989 (1893).  Nine years later we extended the holdings in
Garrett and Abram, when we held that a judgment rendered by a statutorily or
constitutionally disqualified judge is null and void.  Gresham v. State, 43 Tex. Crim. 466,
467, 66 S.W. 845, 845 (1902).
	It appears that this Court's first statement equating a judge's disqualification, or
lack of qualifications, to a court's jurisdiction came in 1969.  Ex parte Washington, 442
S.W.2d 391, 392 (Tex. Crim. App. 1969).  In that case, the Court held that "[t]he
disqualification of a judge is a matter affecting the jurisdiction and power of the court to
act and cannot be waived."  Id.  Unfortunately, the Washington Court cited two cases
from the Texas Court of Civil Appeals for that proposition.  See Pahl v. Whitt, 304
S.W.2d 250, 252 (Tex. Civ. App.--El Paso 1957, no writ); Lee v. British-American
Mortgage Co., 51 Tex. Civ. App. 272, 277, 115 S.W. 320, 322 (Austin 1908, writ
dism'd).  However, even more regrettable is that Pahl never held that a disqualification
affects jurisdiction, and although the Lee Court did so hold, the authority that court relied
on was inapposite. (1)  Twenty-six years later, Judge Meyers explained that "this Court is
prone to characterize any nonwaivable requirement of the law as jurisdictional, with the
invariable consequence that its opinions are more confusing than they need to be."  Stine
v. State, 908 S.W.2d 429, 434 (Tex. Crim. App. 1995) (Meyers, J., concurring).  I agree. 
He went on to say that "calling something jurisdictional is not just a different way of
saying that a judge lacks authority to do it."  Id.  However, a plurality of the Court in Stine
held that the constitutional provision in question was jurisdictional.  Id. at 433 (plurality
op.).
	Two years after this Court's decision in Stine, we began to shift our jurisprudence
relating to the qualifications and authority of judges once again.  See Davis v. State, 956
S.W.2d 555, 559-60 (Tex. Crim. App. 1997).  Reiterating the point first made by the
Texas Supreme Court in 1851, the Davis Court disavowed the characterization that "the
authority of the judge to preside [is] a jurisdictional issue . . . ."  Id. at 559.  We then
proceeded to distinguish between a disqualified judge and an unqualified judge and
whether the prohibition was constitutional or statutory in nature. (2) Id. at 559-60.  In Ex
parte Seidel, 39 S.W.3d 221, 224 (Tex. Crim. App. 2001), we continued to draw new
distinctions when we held that a judge's lack of authority can be categorized into two
types of errors, illegal and irregular.  In dissent, Judge Womack lamented that "lack of
authority does not make a judgment void, although we have mistakenly said so more than
once."  Id. at 225 (Womack, J., dissenting, joined by Keller, P.J., and Meyers, J.).  Judge
Womack's frustrations are certainly understandable in light of this recitation of the
Court's jurisprudence in this area. (3)
	Today, the Court affirms the judgment of the court of appeals, "presumably to
include a new hearing on the appellant's motions to suppress conducted before an
individual who is actually qualified to enter it on behalf of the trial court."  Maj. Op. at
20-21.  But we are also told that, regardless of whether the orders entered were void or
voidable, "appellant timely challenged them in the trial court . . . ."  Id.  In contrast, the
court of appeals granted relief based on its holding that the orders entered were void and
that no objection was necessary.  Lackey v. State, 322 S.W.3d 863, 869 (Tex.
App.--Texarkana 2010).  The conundrum presented is that our case law indicates, and the
court of appeals agreed, that such orders are void and not subject to waiver, (4) but the
majority grants relief by using the rules of procedural default to hold that Appellant
preserved his claim.  Thus, the majority explicitly declines to address the merits of the
State's voidability issue, but it proceeds to grant the relief it would have granted if it had
held the orders in this case were void. (5)  Maj. Op. at 11-12, 20.  I am unable to join the
majority in concluding that the dispositive issue here is that Appellant preserved his claim
by making a timely and specific objection at trial when we decline to address the
voidability issue. (6)
	If the question of whether the orders in this case are void or voidable has not been
answered, I think that ambiguity is derived from Davis, where we apparently (7) began
returning our relevant case law to its oldest roots.  See Garrett, 6 Tex. at 448 (holding that
an order or judgment issued by a disqualified judge is void but not because the court
lacked jurisdiction).  Unlike the majority, I would reach the merits of the State's ground
for review because if the question of voidability is indeed unanswered, then this Court has
a duty to settle an important question of state law that has not been--but should
be--settled by the Court of Criminal Appeals.  Tex. R. App. P. 66.3(b).  This concern is
of even greater importance here, in my opinion, because this Court has created the
problem we now decline to address. (8)

	I would have held that the orders entered by Skotnik (the visiting judge) were
voidable, not void.  Black's Law Dictionary defines "void judgment," in relevant part, as
"[a] judgment that has no legal force or effect, the invalidity of which may be asserted by
any party whose rights are affected at any time and any place, whether directly or
collaterally" because it "is incapable of being confirmed, ratified, or enforced in any
manner or to any degree."  Black's Law Dictionary 848 (7th ed. 1999).  In contrast, a
voidable judgment is defined as "[a] judgment that, although seemingly valid, is defective
in some material way" and that, "although rendered by a court having jurisdiction, is
irregular or erroneous."  Id.
	The orders entered by Skotnik in this case were irregular and materially defective. 
He lacked the qualifications to be appointed as a visiting judge, and although his orders
seemed valid (at least until Appellant discovered Skotnik was not qualified), they were
actually rendered by a court with jurisdiction but without a qualified judge to properly
invoke that jurisdiction.  Moreover, the underlying rationale supporting void judgments
has eroded with the passage of time.  That erosion is particularly evident here, where we
have held that these issues are ripe for review and that, while judicial qualifications and
authority are important issues, they are not jurisdictional. (9)  For these reasons, I would
hold that the orders entered were voidable, not void, and that Rule 33.1 of the Texas
Rules of Appellate Procedure should be applied to these circumstances.
	Assuming that our procedural default rules apply here, I would hold that because
Appellant failed to timely object to the visiting judge's qualifications, he should be
prevented from raising his claim now.  To preserve error a complaint must be "made to
the trial court by a timely request, objection, or motion that . . . state[s] the grounds for the
ruling that the complaining party sought from the trial court with sufficient specificity to
make the trial court aware of the complaint, unless the specific grounds were apparent
from the context."  Tex. R. App. P. 33.1(a)(1)(A).  We have held that a timely objection is
one that is made as soon as the need for one becomes apparent. (10)   However, the record
must also show that the trial court "ruled on the request, objection, or motion, either
expressly or implicitly" or "refused to rule on the request, objection, or motion, and the
complaining party objected to the refusal."  Id. at (a)(2)(A), (B).  Thus, regardless of
whether Judge Cox reconsidered the motion to suppress and, in doing so, made a ruling
on the merits, the plain language of the rule also requires that the complainant make a
timely and specific objection.  See Maj. Op. at 15-17; Tex. R. App. P. 33.1(a)(1), (2).
	In holding that Appellant's motion to set aside was timely, the majority
distinguishes Janecka and focuses almost exclusively on explaining why Appellant
should not have been required to object at the suppression hearing. (11)  Maj. Op. at 2, 12-20.  The majority also cites Young v. State, 137 S.W.3d 65, 70 (Tex. Crim. App. 2004)
and Garza v. State, 126 S.W.3d 79, 83 (Tex. Crim. App. 2004), to explain why
Appellant's motion was timely.  Maj. Op. at 12.  Based on the majority's reliance on
Young, 137 S.W.3d at 70, and Garza, 126 S.W.3d at 83, we are left to assume that the
objectionable event occurred before Appellant could have reasonably foreseen it and that,
because this was a bench trial, timeliness was not "quite as crucial."  Maj. Op. at 12.
	While I do not disagree with either authority, the combined weight of those
authorities does not vitiate this Court's holding in Janecka that, if an objection cannot be
made at the time of the error, an objection is still required "at the earliest feasible
opportunity."  Janecka, 823 S.W.2d at 244.  Nor can the majority's holding withstand the
weight of its own assertion that an objection or complaint is not required until the basis
for relief has become apparent.  Maj. Op. at 14.  Moreover, the majority ignores the fact
that Young had nothing to do with judicial qualifications or authority, and is
distinguishable.  Instead, Young was specifically about preserving error in a mistrial
situation.  Young, 137 S.W.3d at 70.  One passage is particularly relevant to this point:We recognize the potential for abuse of a rule allowing a motion for mistrial
without a preceding objection or request for instruction to disregard. If a
party delays motion for mistrial, and by failing to object allows for the
introduction of further objectionable testimony or comments and greater
accumulation of harm, the party could no more rely on the untimely motion
for mistrial than on an untimely objection. This appellant's motion for
mistrial was not so delayed.

Id.  The Court did state that "[i]t is not possible to make a timely objection to an
unforeseeable occurrence, and an objection after an event occurs cannot fulfill the
purpose of the objection, which is to prevent the occurrence of the event."  Id.  Citing
Young in this case is problematic because Young stands for the proposition that no
objection is needed if the occurrence was unforeseeable, which the majority appears to
claim, but then the majority decides that Appellant's after-the-fact objection preserved his
claim.  If this was truly an unforeseeable event, then why discuss the specificity or
timeliness of Appellant's objection?  Thus, it is evident that Young is distinguishable and
was not meant to apply to a situation like this.
	Nonetheless, giving the majority the benefit of the doubt that Young is applicable
here and that Janecka is distinguishable, I agree with the majority that our rules of
procedural default still require an objection as soon as the need for one becomes apparent.
Maj. Op. at 14; Hollins, 805 S.W.2d at 476.  Although cited by the majority in its
analysis, the rule requiring a complaint or objection when the need for one becomes
apparent seems to have winked out of existence when the majority reached the conclusion
that Appellant preserved his claim.  Maj. Op. at 19-20.  Instead, we are told that
Appellant received no form of notification prior to the suppression hearing held on
December 2 and that "[w]e are loathe to require the appellant to make . . . a blind
objection in order to preserve error for appeal, even in the name of judicial economy." 
Maj. Op. at 14.  I agree, requiring any party to make a blind objection does not make
sense.  The problem with the position of the majority and Presiding Judge Keller is that a
blind objection was not required here.  Under the circumstances, I would hold that an
objection was required at the earliest feasible opportunity (12) and that the earliest feasible
opportunity to object is when the grounds become apparent. (13)
	The majority decides that "[t]he appellant's [March] motion to set aside Skotnik's
orders . . . was his first opportunity to obtain a ruling from" a qualified judge.  Maj. Op. at
15.  I disagree.  Just because the hearing with Judge Cox in March followed the
December 2 suppression hearing, it does not necessarily follow that the March hearing
was Appellant's first opportunity to obtain a ruling.  And, with all due respect to the
majority, Appellant waited four months after the suppression hearing to complain about
Skotnik's authority to preside. (14)  I do not understand Judge Cox's actions in this case, but
the fact remains that Skotnik had already been appointed in this case once. (15)  Maj. Op. at
3.  And, even if Appellant "had no apparent basis . . . to anticipate Skotnik's presence on
the bench, much less to question [his] qualifications to be there," ninety-one days is
sufficient time to investigate the qualifications of a person appointed as a visiting judge.
	A more difficult case would have asked this Court to determine the exact moment
in time that Appellant should have known that Skotnik was not qualified to be appointed. 
Instead, we are faced with a much easier case where someone waited at least ninety-one
days to object (but possibly up to one hundred twenty-six days).  Because of the unusual
circumstances here, I think there are two possibilities in this case.  The first is that
Appellant knew that Skotnik was not qualified to be appointed to the bench, but he was
nonetheless convinced that, as a municipal court judge in the same city (Bonham City),
Skotnik is a fair and honest man that would come to an equitable decision, at least until
Appellant lost his motions to suppress.  Alternatively, a reasonable attorney would have
been put on notice that an investigation was in order based on the first October 28
appointment order, the fact that Skotnik appeared on the bench on December 2, and that a
second appointment order was entered into the case file.  Moreover, I think a reasonable
investigation would have revealed that Skotnik was not qualified to be appointed.  A rule
allowing a party to discover reversible error but not requiring that he raise it until he
knows whether his motion will be granted does not comport with this Court's modern
view that surprise in litigation is something to be avoided.  Such a rule also gives an
undeserved windfall to the complainant as a reward for not acknowledging that reversible
error has been made.
	I believe that the majority has erred by affirming the relief granted by the court of
appeals but refusing to address the merits of the State's claim.  Today, we have either
abdicated our responsibility to answer an important but unsettled question of state law or
we have created a legal fiction by granting relief on the basis that Appellant preserved a
claim that our case law tells us need not be preserved.  Therefore, I respectfully dissent
from the Court's resolution of this case.
								Hervey, J.
Filed: March 7, 2012

Publish
1. See Lee, 115 S.W. at 322 (citing City of Dallas v. Peacock, 89 Tex. 58, 60-63, 33 S.W.
220, 220-22 (1895) (holding that parties to a suit cannot waive a judge's disqualification, but not
equating inability to consent to a loss of jurisdiction)).
2. My research has revealed no historical (or meaningful) difference between an
unqualified judge and a disqualified judge, or a constitutional disqualification and a statutory
disqualification.  This is not to say such a distinction should not exist.  Rather, it is merely
intended to point out that there is an on-going debate as to whether such orders and judgments
are void or voidable.
3. See also Nix v. State, 65 S.W.3d 664, 668 (Tex. Crim. App. 2001) (identifying a "nearly
exclusive" list of situations when judgments are void, but not indicating that judicial
qualifications or authority issues are among them).
4. Id.
5. The jurisprudence of this Court informs us that, regardless of whether we characterize
the issue as one of jurisdiction or one of judicial authority, throughout the overwhelming history
of this Court we have held such orders to be void.
6. This Court has held numerous times that a void judgment can be attacked for the first
time on appeal because the judgment was a nullity and there is nothing to preserve.  See Nix, 65
S.W.3d at 667-68; Seidel, 39 S.W.3d at 225; Hoang v. State, 872 S.W.2d 694, 697-98 (Tex.
Crim. App. 1993).  But see Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993).  It
would seem that if the orders entered in this case are void due to the court lacking jurisdiction,
then Appellant would have no duty to object at trial.  Marin, 851 S.W.2d at 279 (holding that a
lack of jurisdiction is a category one claim that cannot be waived or forfeited).  On the other
hand, if the orders entered were voidable and nonjurisdictional, then such a claim would be a
category three right under Marin, and Appellant should be required to object.  Id.; see also Ex
parte Von Koenneritz, 105 Tex. Crim. 135, 137, 286 S.W. 987, 987-88 (1926) (quoting Ex parte
Boland, 11 Tex. Ct. App. 159 (1881)) ("The ordinary mode of seeking redress against a voidable
judgment in a criminal proceeding would be by appeal.").
7. Maj. Op. at 9 n.19; accord Ex parte Richardson, 201 S.W.3d 712, 713 (Tex. Crim. App.
2006) (stating that "Davis nevertheless suggested, in dicta, that a lack of authority due to a
judge's 'relationship to the case or a party' rendered the judge's actions 'a nullity'").
8. "I beheld the wretch--the miserable monster whom I had created. [And] I remained
during the rest of the night, walking up and down in the greatest agitation, listening attentively,
catching and fearing each sound as if it were to announce the approach of the demoniacal corpse
to which I had so miserably given life."  Mary Wollstonecraft Shelly, Frankenstein: or,
The modern Prometheus 100-01 (G & W.B. Whittaker 1823).
9. Maj. Op. at 9 n.19; Davis, 956 S.W.2d at 559.
10. Maj. Op. at 12; Aguilar v. State, 26 S.W.3d 901, 905-06 (Tex. Crim. App. 2000);
Hollins v. State, 805 S.W.2d 475, 476 (Tex. Crim. App. 1991); accord Janecka v. State, 823
S.W.2d 232, 244 (Tex. Crim. App. 1990) (op. on reh'g) (requiring an objection at the time of
appointment or "at the earliest feasible opportunity thereafter").
11. Lackey v. State, PD-1621-10, slip op. at 2 (Tex. Crim. App. 2012) (Keller, P.J.,
concurring) (stating that Judge Keller would have held that Appellant was not required to object
at the December 2 suppression hearing).
12. See Janecka, 823 S.W.2d at 244. 
13. See Hollins, 805 S.W.2d at 476.
14. Measured from the initial appointment of Skotnik on October 28, 2009, Appellant
waited one hundred twenty-six days before filing his motion to set aside Skotnik's orders.  See
Maj. Op. at 3.  Such a complaint is hardly timely.
15. The fact that Skotnik was appointed to preside by Judge Cox on October 28 should
serve as some "notice" that Appellant should have investigated Skotnik's qualifications.  And if
not then, Appellant certainly should have been concerned when Skotnik mysteriously appeared in
person on December 2.  Moreover, the fact that Appellant was not properly notified either time
Skotnik was appointed is not a reason to hold that Appellant need not have objected at all;
instead it is a reason to hold that Appellant procedurally defaulted his claim about Skotnik's
qualifications because he ignored the evidence plainly before him that something unusual was
happening.
