Lackey v. State

• Decision Date: 07 March 2012
• Docket Number: No. PD–1621–10.,PD–1621–10.
• Citation: 364 S.W.3d 837
• Parties: Raymond Dean LACKEY, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

364 S.W.3d 837

Raymond Dean LACKEY, Appellant,

v.The STATE of Texas.

No. PD–1621–10.

Court of Criminal Appeals of Texas.

March 7, 2012.

Steven R. Miears, Bonham, for Appellant.

Lisa C. McMinn, First Asst. State's Atty, Austin, TX, for State.

PRICE, J., delivered the opinion of the Court in which WOMACK, JOHNSON, COCHRAN, and ALCALA, JJ., joined.

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. ¹ In a published opinion, the Sixth Court of Appeals reversed the appellant's conviction, holding that the constitutional county judge, Eileen Cox, erred in appointing a local municipal-court judge, John Skotnik, to preside in her place over the appellant's motion to suppress hearing and that she should have granted his later request that she conduct another suppression hearing.² The court of appeals held that it was of no moment that the appellant failed to object to the qualifications of the municipal-court judge at the time of the suppression hearing itself because Skotnik's orders denying the motions to suppress were void and could be challenged for the first time on appeal.³ We granted the State Prosecuting Attorney's (SPA) petition for discretionary review to address (1) whether the court of appeals was correct to hold the orders on the motions to suppress void, not voidable, and (2) whether the appellant forfeited any claim on appeal by failing to challenge the municipal-court judge's qualifications during the hearing. Finding our resolution of the second question dispositive, we need not address the first. We hold that it does not matter whether the municipal-court judge's orders denying the appellant's motionsto suppress were void because the appellant adequately preserved his complaint for appeal.

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.” ⁴ The record does not show that the appellant was ever notified of this order of appointment by service of process or otherwise. Although there is no court reporter's record of the proceedings, the docket sheet reflects that a hearing was conducted on December 2, 2009, over which Skotnik presided, after which he entered written orders that are in the clerk's record, denying each of the appellant's motions to suppress. The parties have agreed for purposes of appeal that the appellant failed to voice any objection to Skotnik's qualifications to sit and rule in Judge Cox's place during the December 2nd suppression hearing.

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.⁵ On March 8, 2010, Judge Cox convened a hearing on the appellant's motion. At this hearing, the appellant once again complained of a lack of notice of Skotnik's appointment and a lack of agreement by the parties. He additionally complained that no showing of good cause was made. At this point, Judge Cox interjected to reveal that she had entered a second order appointing Skotnik, which she characterized as a “general appointment” order, but which she caused to be “put in the file” only after she saw the appellant's motion for a new suppression hearing.⁶ Later at the hearing, Judge Cox elaborated that she had been “out with pneumonia” at the time of the appellant's suppression hearing, and that she had appointed Skotnik on her own “oral motion.” Only after Judge Cox had already expressly denied the appellant's motion for a new suppression hearing, both orally on the record and by way of an express written order, did the State remark at the hearing that its “objection” to the appellant's motion was “mainly that [the appellant] didn't object to [Skotnik's appointment] at the time of the hearing. As soon as Skotnik came on, he made no objection on the record to Skotnik hearing the case.”

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[.]” ⁷

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. ⁸ Unlike Section 26.022, which authorizes a county court to appoint a visiting judge to preside over a particular matter, Section 26.023 authorizes the county court to make a more global appointment—that is, to “sit in all matters that are docketed on any of the county court's dockets.” ⁹ And indeed, the tenor of Judge Cox's “general” orders, both of October 28th and December 2nd, conform more to Section 26.023 than to Section 26.022. For this reason, the appellant fashioned his appellate challenge to those deficiencies he perceived to be inherent in Judge Cox's December 2nd order as measured by the criteria of Section 26.023.

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.¹⁰ Turning next to the State's contention that the appellant had procedurally defaulted his claim by failing to challenge Skotnik's appointment at the time of the suppression hearing, the court of appeals conceded that such an argument would be valid with respect to any “procedural defects” in the appointment process. ¹¹ Nevertheless, the appellant raised more than just “procedural irregularities” with respect to Skotnik's appointment; he also challenged Skotnik's eligibility under Section 26.023 to assume Judge Cox's duties as county court judge.¹² The court of appeals agreed with the appellant that, because Skotnik was neither a retired judge nor a constitutional county judge from another county, Judge Cox lacked the statutory authority to appoint him.¹³ Such a putative judge has no authority to act, and his putative actions are a nullity, which may be attacked for the first time on appeal. ¹⁴ “Accordingly,” the court of appeals concluded, “the trial court erred in denying Lackey's motion to set aside the void orders and in failing to grant a new hearing on the suppression motions.” ¹⁵ The court of appeals therefore reversed the appellant's conviction and remanded the cause to the trial court for further proceedings consistent with its opinion, including a new suppression hearing.¹⁶

On Petition for Discretionary Review

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. ¹⁷ Instead, the SPA challenges the court of appeals's reliance upon this Court's opinion in Davis v. State for the proposition that the actions of a putative judge whose appointment was made without statutory authority are a nullity.¹⁸ Pointing to a pair of more recent opinions of this Court, ¹⁹ the SPA argues that the court of appeals's reliance upon what it characterizes as dicta in Davis was misguided, that Skotnik's lack of...