Lackey v. State
Lackey v. State
Opinion of the Court
delivered the opinion of the Court
Pursuant to a negotiated plea of guilty, the appellant was convicted of the offense of driving while intoxicated and his punishment assessed at nine months’ confinement, probated for eighteen months, and a fine of $1000.
FACTS AND PROCEDURAL POSTURE
At Trial
In an information filed on October 15, 2008, the appellant was charged with the offense of driving while intoxicated, alleged to have been committed in June of the same year. In June of 2009, the appellant filed two motions to suppress challenging the admissibility of oral statements and tangible evidence that he claimed were the product of an illegal arrest. A pre-trial hearing was scheduled for September 30, 2009, but the State sought and obtained a continuance until October 28th. For reasons not revealed by the record, the hearing did not take place on October 28th as re-scheduled, but the clerk’s record does contain an order, signed by Eileen Cox in her capacity as Fannin County Judge, and dated October 28th, appointing attorney John Skotnik, a municipal-court judge, “to act for me as County Judge involving any mental or chemical dependency, criminal, juvenile, civil or probate matter.”
However, on March 3, 2010, the appellant filed a motion to set aside Skotnik’s orders denying his motions to suppress, asking Judge Cox to conduct a new suppression hearing and make new rulings. In this motion, the appellant complained that the appointment of Skotnik to preside over his suppression hearing was “fundamental error” because “Mr. Skotnik, although a licensed attorney, is not and never has been an elected County or State judge in Texas. He is not a retired judge for the State of Texas.” The appellant set out the text of Section 26.022 of the Texas Government Code, complaining that he had no prior notice of the appointment and that no attempt was made to have the parties agree on Skotnik’s appointment beforehand, both of which are required by the statute.
Immediately after this hearing, the appellant pled guilty pursuant to a negotiated plea bargain. As an express part of the plea agreement, the appellant “Reserve[d] the Right to Appeal Pretrial Matter Raised and Ruled on Prior to Trial.” The trial court duly certified the appellant’s right to appeal from all “matters ... raised by written motion filed and ruled on before trial and not withdrawn or waived[.]”
On Direct Appeal
On appeal, in response to Judge Cox’s assertion on the record that the December 2nd order appointing Skotnik had been of a “general” character, necessitated by her illness, the appellant argued that the order was invalid because it did not conform to Section 26.023 of the Government Code.
Among other deficiencies, the appellant argued that the record shows that Skotnik was not qualified to act as a county court judge in Fannin County because he is neither a retired judge of any rank nor a constitutional county judge from another county, as required by Section 26.023(a). He argued that the court of appeals could reach this issue, even though he failed to object to Skotnik’s appointment at the suppression hearing, because the actions of a “putative judge” who is statutorily unqualified for the office are a nullity. For its part, the State continued to argue that Section 26.022 is the applicable statute, that Skotnik was qualified under Section 26.022, and that the appellant failed to preserve error with respect to any procedural deficiencies in Skotnik’s appointment under Section 26.022 by failing to raise them at the time of the December 2nd suppression hearing.
In addressing these issues, the court of appeals turned first to the question of which statute governed Skotnik’s appointment. The court of appeals held that, given the tenor of, and the circumstances giving rise to, Judge Cox’s December 2nd appointment order, Section 26.023 controls.
The SPA does not take issue with the court of appeals’s holdings, either that Section 26.023 is the controlling statute, or that Skotnik lacked the statutory qualifications under that provision to preside in Judge Cox’s court.
ANALYSIS
Under Rule 33.1(a)(1) of the Texas Rules of Appellate Procedure, “[a]s a prerequisite to presenting a complaint for appellate review, the record must show that ... the complaint was made to the trial court by a timely request, objection,- or motion[.]”
The requirement that complaints be raised in the trial court (1) ensures that the trial court will have an opportunity to prevent or correct errors, thereby eliminating the need for a costly and time-consuming appeal and retrial; (2) guarantees that opposing counsel will have a fair opportunity to respond to complaints; and (3) promotes the order*844 ly and effective presentation of the case to the trier of fact.25
As in Gillenwaters,
In this case, by raising the issue of Skotnik’s qualifications in his motion for a new suppression hearing, the appellant provided Judge Cox with an opportunity to correct her error in having appointed an individual who was unqualified to act on her behalf in her court, and thus avoid the very appeal that is before us. Moreover, the State was given an opportunity to respond, and did respond. Nothing about the presentation of the issue at this stage of the pre-trial proceedings hampered the effective presentation of the case to the factfinder — the appellant pled guilty on the same day that his motion for a new suppression hearing was denied (contingent, of course, on his being allowed to appeal the issue). The only argument we can imagine why an objection lodged at the time of the suppression hearing would have been important is predicated upon a strict notion of judicial economy; had the appellant objected at that time, Skotnik would have had an opportunity to sustain the objection, thus obviating the unauthorized hearing and saving the parties the burden of duplicating their efforts in a new suppression hearing. But “[preservation of error does not require that action be requested from the trial court until the basis for relief has become apparent.”
“The standards of procedural default,” we have admonished, “are not to be implemented by splitting hairs in the appellate courts.”
In urging us nevertheless to hold that the appellant failed to preserve error, the SPA relies upon Janecka v. State.
It is true that we said in Janecka, in keeping with Rule 3B.l’s predecessor, that “to preserve the issue of appointment of a master, a party must specifically object to the judge making the appointment. The objection must be made at the time of the appointment or at the earliest feasible opportunity thereafter.”
CONCLUSION
Whether Skotnik’s orders denying the appellant’s motions to suppress were void or merely voidable, the appellant timely challenged them in the trial court, and the county court judge had the authority to rule — and did rule — on the merits of the appellant’s motion to set those orders aside. Having upheld that ruling on appeal, the court of appeals correctly reversed the judgment of the trial court and remanded the cause for further proceedings, presumably to include a new hearing on the appellant’s motions to suppress conducted before an individual who is actually qualified to entertain it on behalf of the trial court. We affirm the judgment of the court of appeals.
.Because the appellant had a prior conviction for the same offense, he was punished as a Class A misdemeanant. Tex. Penal Code §§ 49.04(a), 49.09(a).
. Lackey v. State, 322 S.W.3d 863, 869 (Tex.App.-Texarkana 2010).
. The order in its entirety reads: “In my absence from the office on October 26, 2009, I hereby appoint the Honorable JOHN SKOT-NIK, attorney at law, to act for me as County Judge involving any mental or chemical dependency, criminal, juvenile, civil or probate matter. Dated this 28th of October, 2009.” The order is signed by both Judge Cox and by Skotnik.
. Tex. Gov’t Code § 26.022. This provision applies in counties for which there is no statutory county court or probate court and therefore "all duties of the county court devolve on the county judge.” Id. § 26.021. This was the case in Fannin County, the parties agree, at the time of the applicant’s trial, and the court of appeals so concluded. Lackey, supra, at 865. Section 26.022 reads, in its entirety:
§ 26.022. Appointment for Particular Matters
(a) The county judge for good cause may at any time appoint a visiting judge with respect to any pending civil or criminal matter.
(b) The visiting judge may be appointed on motion of the court or on motion of any counsel of record in the matter. Each counsel of record is entitled to notice and hearing on the matter.
(c) To be appointed a visiting judge, a person must be agreed on by the counsels of record, if the counsels are able to agree.
*840 (d) The motion for appointment and the order appointing the visiting judge shall be noted on the docket. A written motion or order may be filed among the papers of the case.
(e) The visiting judge has the powers of the county judge in relation to the matter involved.
. Identical to the earlier order except for the relevant dates, this second appointment order reads: "In my absence from the office on December 2, 2009, I hereby appoint the Honorable JOHN SKOTNIK, attorney at law, to act for me as County Judge involving any mental or chemical dependency, criminal, juvenile, civil or probate matters. Dated this 2nd day of December, 2009." It is likewise signed by Judge Cox and by Skotnik. If this was indeed a "general” order of appointment, then the appointment order dated October 28th was also a "general" order of appointment, since they are substantively the same.
. See Tex.R.App. P. 25.2(a)(2), (d).
.Tex. Gov’t Code § 26.023. This provision also applies to the constitutional county court in Fannin County. Id. § 26.021. Section 26.023 reads, in its entirety:
§ 26.023. Appointment for Absence of Judge
(a) The county judge may appoint a retired judge or a constitutional county judge from another county as a visiting judge when the county judge is absent from the county or absent because of physical incapacity.
(b) The visiting judge shall sit in all matters that are docketed on any of the county court’s dockets and has the powers of the county judge in relation to the matter involved.
(c) Without the consent of the commissioner's court, visiting judges appointed under this section may not sit for more than 15 working days during a calendar year.
(d) The order appointing the visiting judge shall be noted in the docket of the court.
. Id. § 26.023(b).
. Lackey, supra, at 867 ("In light of the language of the order, the court’s characterization of same as a 'general appointment,’ Judge Cox’s absence from the bench due to physical incapacity, and the language of the statutory provisions in question, we conclude that Section 26.023 of the Texas Government Code governs the appointment at issue.”).
. Id. at 868. For this proposition, the court of appeals aptly cited Miller v. State, 866 S.W.2d 243, 245-46 (Tex.Crim.App. 1993).
. Id.
. Id. at 867.
. Id. at 869.
. Id.
.Id.
. See SPA's Brief on the Merits, at 3, n. 1 ("We do not disagree with the Court of Appeals’ holding that § 26.023 was the applicable statute under the circumstances in this case. Our argument is that a judge’s lack of qualification under the statute does not render the judgment void; therefore, a timely objection is required to preserve error.").
. See Lackey, supra, at 868 ("Davis enumerates a number of circumstances in which the action of the trial court, done without authority, is void.”). In Davis, after first observing that the lack of authority in a presiding judge does not equate to a lack of jurisdiction in the court itself ("jurisdiction or judicial power is vested in courts, not individuals”), we nevertheless went on to remark:
This is not to say that judicial functions performed by one without any authority to act may not be void. For example, if the trial judge is related to a party by affinity or consanguinity or had formerly prosecuted the same case he now presides over, he is constitutionally disqualified under Article V, Section 11 [of the Texas Constitution]. See Ex parte Vivier, 699 S.W.2d 862 (Tex.Cr.App. 1985); Ex parte Washington, 442 S.W.2d 391 (Tex.Cr.App. 1969). In French v. State, 572 S.W.2d 934 (Tex.Cr.App. 1978) (on second motion for rehearing), a temporary appointed municipal judge’s actions were held void because he had not taken the oath of office as required for elected judges and appointed officers by Article XVI, Section 1, Texas Constitution. Therefore, as opposed to being disqualified from acting in a particular case, the special judge in French was not qualified because he had not taken the constitutionally required oath. See also Herrod v. State, 650 S.W.2d 814 (Tex.Cr.App. 1983) (retired judge was not authorized to preside because record failed to show: an order of assignment from the administrative judge, that the duly elected judge was disabled, and that the retired judge had executed the bond and taken the oath of office)....
Common to all of the above cases which hold the conviction void is the constitutional or statutory disqualification or lack of qualification of the judge. If the putative judge did not possess the prescribed qualifications to act in that capacity or he was disqualified from a particular case because of his relationship to the case or a party, he had no authority over the proceedings and his actions were a nullity.
956 S.W.2d 555, 559 (Tex.Crim.App. 1997).
.In Ex parte Richardson, 201 S.W.3d 712 (Tex.Crim.App. 2006), the Court declined to grant post-conviction habeas corpus relief in the case of an applicant who waited until post-conviction proceedings to claim that the judge who had presided over his probation-revocation proceedings had prosecuted him at his original trial, rendering him disqualified under Article V, Section 11, of the Texas Constitution and Article 30.01 of the Texas Code of Criminal Procedure. Characterizing the above-quoted passage from Davis as "dicta," and observing that "whether the judge’s lack of authority necessarily renders his actions a nullity that is correctable on habeas corpus is an issue ripe for re-examination[,]” Richardson, supra, at 713, we overruled an earlier opinion granting habeas relief, Ex parte Miller, 696 S.W.2d 908 (Tex.Crim.App. 1985). Noting that Richardson was aware at the time of the revocation hearing that the judge had earlier prosecuted him; we held that the applicant should have registered his complaint at that time.
In Whitehead v. State, 273 S.W.3d 285 (Tex.Crim.App. 2008), the appellant raised the issue of the disqualification of his trial attorney under Article 30.01 for the first time on appeal. Because the State did not question our line of cases holding that a judge's disqualification may be raised for the first time on appeal, we did not address that question in the course of resolving the appellant’s petition for discretionary review, though a majority of our judges noted that it is a question that is, indeed, ripe for reconsideration. Id. at 286 n. 3; id. at 290 (Johnson, J., joined by Cochran,
. Tex.R.App. P. 33.1(a)(1).
. Gillenwaters v. State, 205 S.W.3d 534, 537 (Tex.Crim.App. 2006).
. Hollins v. State, 805 S.W.2d 475, 476 (Tex.Crim.App. 1991).
. Young v. State, 137 S.W.3d 65, 70 (Tex.Crim.App. 2004).
. See Garza v. State, 126 S.W.3d 79, 83 (Tex.Crim.App. 2004) (discussing different application of contemporaneous objection rule in bench trial and jury trial).
. Id. at 538.
. George E. Dix & John M. Schmolesky, 43A Texas Practice: Criminal Practice and Procedure § 53:60, at 1029 (3rd ed. 2011), citing Crane v. State, 786 S.W.2d 338, 348 (Tex.Crim.App. 1990) (failure to object to violation of discovery order until after cross-examination of witness whose testimony revealed the violation was nevertheless timely because the defendant was trying to develop through that cross-examination exactly the extent of the violation), and Johnson v. State, 878 S.W.2d 164, 167-69 (Tex.Crim.App. 1994) ("[A] complaint is not waived as to evidence which is properly admitted but for which the ground of inadmissibility later arises.").
. In dissent, Judge Hervey argues that, even if the appellant could not have known to object at the suppression hearing itself, or immediately thereafter, he has still procedurally defaulted any complaint as to Skotnik's qualifications because he waited several months to file his motion for a new suppression hearing, and thus he did not avail himself of the earliest opportunity to lodge his complaint. Dissenting opinion, at 851-54. We think this is too draconian an application of Rule 33.1(a)(1). Tex.R.App. P. 33.1(a)(1). The rule requires "a timely request, objection, or motion[,]’’ but it does not define "timely.” For purposes of in-court proceedings, we have typically declared a complaint to be timely only if made at the earliest opportunity once a basis for complaint becomes apparent. See notes 21 & 22, ante. But with respect to out-of-court pre-trial complaints, such a construction of "timely” will not invariably make sense. The timeliness of many pre-trial complaints is governed by Article 28.01, Section 2. Tex.Code Crim. Proc. art. 28.01, § 2. This provision requires that certain enumerated pre-trial matters be "raised or filed seven
The particular pre-trial motion that the appellant filed here is not one that is expressly covered by Article 28.01. But we should not rely on that circumstance as justification to treat his motion any differently than we would treat other pre-trial matters in construing Rule 33.1(a)(l)’s timeliness requirement. During the approximately three-month period between the suppression hearing (December 2, 2009) and the hearing that Judge Cox convened to rule on the appellant’s motion for a new suppression hearing and (having denied that) to accept his plea (March 8, 2010), the docket reveals no other court setting at which the appellant could have obtained a ruling. Under these circumstances, we regard the appellant’s pre-trial motion to set aside Skot-nik’s ruling on the suppression motion and to conduct a new suppression hearing as timely. Judge Cox obviously did too, for she denied it on the merits.
. State v. Stevens, 261 S.W.3d 787, 792 (Tex.App.-Houston [14th Dist.] 2008, no pet.); State v. Henry, 25 S.W.3d 260, 262 (Tex.App.San Antonio 2000, no pet.).
. Black v. State, 362 S.W.3d 626, 633-35 (Tex.Crim.App. 2012). See Montalvo v. State, 846 S.W.2d 133, 138 (Tex.App.-Austin 1993, no pet.) ("The trial court had continuing jurisdiction over the case and was free to
. Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim.App. 1992).
. Id. (emphasis added).
. 977 S.W.2d 379, 380-81 (Tex.Crim.App. 1998).
. 823 S.W.2d 232 (Tex.Crim.App. 1990).
. Id. at 233 (opinion on original submission).
. Id. at 233-34; id. at 243 (opinion on reh'g).
. Id. at 243 (opinion on reh'g).
. Id.
. Id.
. Id.
. Id. at 244 (construing former Tex.R.App. P. 52(a)). But elsewhere in the opinion we indicated that we "might” have reached the merits of the State's claim had it been raised “on [original] submission before this Court,” instead of for the first time in a motion for rehearing following our disposition of the case after remand. Id. at 243. This suggests that the State may have adequately preserved error by objecting to the special master's appointment at any time during the proceedings in the trial court on remand.
. Lackey, supra, at 867-68 (distinguishing Ja-necka ).
.Lankston, supra, at 909. Indeed, given that the appellant’s negotiated guilty plea was expressly conditioned on his right to appeal the issue of Skotnik’s qualifications and Judge Cox’s refusal to conduct a new suppression hearing, a ruling that any such error was not preserved could potentially impugn the volun-tariness of his plea, opening the door to possible post-conviction habeas corpus relief. See, e.g., Wooten v. State, 612 S.W.2d 561, 563 (Tex.Crim.App. 1981) ("As a matter of constitutional law a guilty plea cannot be said to have been voluntary if it was induced by an agreement, approved by the court, that a question could be appealed when that agreement cannot be fulfilled.”).
Concurring Opinion
filed a concurring opinion.
The Court says that the record does not show that appellant was notified of Skot-nik’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 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.
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.
. 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 estop-pel with respect to a complaint that the judge was unqualified, but it is unnecessary to address that issue today.
Dissenting Opinion
filed a dissenting opinion in which MEYERS and KEASLER, JJ., joined.
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 842-43 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
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 inappo-site.
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.
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 847. 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,
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
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.
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.
In holding that Appellant’s motion to set aside was timely, the majority distinguishes Janecka and focuses almost exclu
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 844. 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 844; 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 847. 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 844. I agree, requiring any party to
The majority decides that “[t]he appellant’s [March] motion to set aside Skot-nik’s orders ... was his first opportunity to obtain a ruling from” a qualified judge. Maj. Op. at 845. 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.
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 ease 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
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.
. 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)).
. 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.
. 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).
. Id.
. 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.
. 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 nonju-risdictional, 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.”).
.Maj. Op. at 842-43 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' ”)•
."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).
. Maj. Op. at 842-43 n. 19; Davis, 956 S.W.2d at 559.
. Maj. Op. at 843; 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”).
. Lackey v. State, 364 S.W.3d 837, 848 (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).
. See Janecka, 823 S.W.2d at 244.
. See Hollins, 805 S.W.2d at 476.
. 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 839. Such a complaint is hardly timely.
. 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.
Reference
- Full Case Name
- Raymond Dean LACKEY, Appellant, v. the STATE of Texas
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- 73 cases
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- Published