          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

       H ERVEY, J., filed a dissenting opinion in which M EYERS and K EASLER, 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
                                                                                    Lackey—2

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
                                                                                        Lackey—3

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



        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)).
                                                                                        Lackey—4

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




       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).
                                                                                        Lackey—5

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


       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
                                                                                         Lackey—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 apparently7 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



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).
                                                                                      Lackey—7

collaterally” because it “is incapable of being confirmed, ratified, or enforced in any

manner or to any degree.” B LACK’S L AW D ICTIONARY 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



       9
           Maj. Op. at 9 n.19; Davis, 956 S.W.2d at 559.
                                                                                      Lackey—8

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


       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).
                                                                                      Lackey—9

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
                                                                                   Lackey—10

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 opportunity12 and that the earliest feasible



       12
            See Janecka, 823 S.W.2d at 244.
                                                                                     Lackey—11

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



       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.
                                                                                    Lackey—12

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
                                                                                 Lackey—13

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

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