           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                        NO. PD-1621-10



                         RAYMOND DEAN LACKEY, Appellant

                                                 v.

                                   THE STATE OF TEXAS

             ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                   FROM THE SIXTH COURT OF APPEALS
                             FANNIN COUNTY

               K ELLER, P.J., filed a concurring opinion.


       The Court says that the record does not show that appellant was notified of Skotnik’s

appointment before the suppression hearing. I agree. An order in the clerk’s file does not constitute

notice. And given the ease with which judges may exchange benches, defense counsel should not

have a burden to blindly object whenever he does not recognize a judge. If counsel discovers after

the hearing that the person on the bench is unqualified, he should object before trial so that a new

suppression hearing may be conducted.

       I disagree with the Court’s use of policy considerations to determine whether appellant
                                                                  LACKEY CONCURRENCE - 2

preserved error. The balancing of policy considerations gives the parties and the courts little

guidance in knowing what is necessary to preserve error, and it is not our usual method of

determining whether error has been preserved. I would simply hold that appellant did not have

enough information to object at the suppression hearing, so he is not accountable for failing to do

so at that time.1

        I also disagree with the Court’s decision to discuss whether an unqualified judge has

authority to determine his own authority. That question relates to the State’s first ground for review,

regarding whether the orders on the motion to suppress were void. Earlier in its opinion, the Court

expressly declines to address the voidness ground in light of its resolution of the State’s second

ground for review. I agree that we need not address voidness and I would not comment on any

aspect of the issue.

        I concur in the Court’s judgment.

Filed: March 7, 2012
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        1
           The result might be different if the record had shown that appellant was given advance
notice of Skotnik’s appointment, that he knew of the appointment ahead of time, or that he knew that
Skotnik was not qualified but nevertheless proceeded to participate in the suppression hearing
without objection. Those scenarios might result in forfeiture or estoppel with respect to a complaint
that the judge was unqualified, but it is unnecessary to address that issue today.
