AFFIRM; and Opinion Filed August 9, 2013.




                                          S  In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-12-01289-CV

                                       EX PARTE: J.L.R.

                      On Appeal from the 304th Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. JD-35928-W

                               MEMORANDUM OPINION
                          Before Justices O’Neill, Francis, and Fillmore
                                   Opinion by Justice Fillmore
       In one issue, J.L.R. asserts the trial court erred by dismissing his application for writ of

habeas corpus with prejudice. We affirm the trial court’s order. We issue this memorandum

opinion because the law to be applied in this case is well settled. TEX. R. APP. P. 47.4.

       On March 25, 1998, J.L.R. pleaded true in this juvenile proceeding to the allegation he

committed capital murder.      The trial court adjudicated J.L.R. a child who had engaged in

delinquent conduct and, pursuant to a plea agreement, assessed a forty-year determinate

sentence. On August 31, 2011, J.L.R. filed a pro se application for writ of habeas corpus, with

accompanying memorandum of law (the writ), asserting his plea of true was not entered

knowingly and voluntarily because he received ineffective assistance of counsel.            J.L.R.

specifically argued his trial counsel incorrectly advised him of the maximum sentence he could

receive and, if he had been advised of the correct punishment range, he would not have entered
into the plea agreement. The trial court appointed new counsel to represent J.L.R. J.L.R.’s new

counsel filed a memorandum of law in support of the writ.

           The trial court held a hearing on the writ on June 14, 2012. J.L.R. testified that, after

consulting with his counsel, he desired to withdraw the writ from the trial court’s consideration.

Under questioning from the trial court, J.L.R. agreed the factual basis for the writ was not true.

The trial court then stated it was “making the finding that these writs are withdrawn and in effect

denied with prejudice.” J.L.R. did not object to the trial court’s finding. Rather, J.L.R. stated on

the record, “I do understand that this terminates the litigation, that I will not bring this issue

before the Court again. And I’m doing this voluntarily. So I do understand the judgment of the

Court.”

           On October 30, 2012, the trial court signed an order dismissing the writ with prejudice.

Although J.L.R. filed a motion for new trial asserting generally that the judgment is contrary to

the law and the evidence, he did not seek a new trial on the ground the trial court erred by

dismissing the writ with prejudice. 1 The motion for new trial was overruled by operation of law.

           In his sole issue on appeal, J.L.R. complains, for the first time, that the trial court erred by

dismissing the writ with prejudice. On appeal, juvenile delinquency proceedings are to be

governed by the civil rules of appellate procedure as far as practicable. In re D.I.B., 988 S.W.2d

753, 756 (Tex. 1999); see also TEX. FAM. CODE ANN. § 56.01(b) (West Supp. 2012) (In a

juvenile proceeding, “[t]he requirements governing an appeal are as in civil cases generally.”).

Generally, in order to preserve a complaint for appellate review, a party must make a timely,

specific request, objection, or motion in the trial court. TEX. R. APP. P. 33.1(a)(1); In re C.O.S.,




     1
      J.L.R. filed the motion for new trial on July 13, 2012, prior to the trial court signing the order of dismissal. However, a prematurely filed
motion for new trial is “deemed to have been filed on the date of but subsequent to the judgment the motion assails.” TEX. R. CIV. P. 306c.



                                                                      –2–
988 S.W.2d 760, 765 (Tex. 1999) (rule of appellate procedure 33.1 applies to both civil and

criminal cases).

       However, because a juvenile proceeding is quasi-criminal, the general rules governing

error preservation in civil cases cannot be applied across the board in juvenile proceedings. In re

L.D.C., 400 S.W.3d 572, 574 (Tex. 2013) (citing In re C.O.S., 988 S.W.2d at 765). The supreme

court has noted that it is “unwise and problematic to apply one preservation rule in adult,

criminal proceedings and another, stricter rule in juvenile cases.” In re C.O.S., 988 S.W.2d at

767. Therefore, precedent from analogous adult criminal proceedings may be instructive in

juvenile cases. Id.; In re I.L., 389 S.W.3d 445, 452 (Tex. App.—El Paso 2012, no pet.)

       In particular, the Texas Supreme Court has looked to Marin v. State, 851 S.W.2d 275

(Tex. Crim. App. 1993), modified on other grounds by Cain v. State, 947 S.W.2d 262, 264 (Tex.

Crim. App. 1997), for guidance on when preservation of error in a juvenile proceeding is

required under rule of appellate procedure 33.1. In re C.O.S., 988 S.W.2d at 765–67; see also In

re A.C., No. 11-09-00164-CV, 2011 WL 3925516, at *5 (Tex. App.—Eastland Sept. 8, 2011,

pet. denied) (mem. op. on reh’g). In Marin, the court of criminal appeals recognized that within

our system of jurisprudence there are at least three distinct categories of rights and requirements:

(1) absolute requirements and prohibitions; (2) rights of litigants which must be implemented by

the system unless expressly waived; and (3) rights of litigants which are to be implemented upon

request. Marin, 851 S.W.2d at 278–79; see also Gutierrez v. State, 380 S.W.3d 167, 172 n.14

(Tex. Crim. App. 2012). Systemic or absolute requirements generally concern jurisdiction of the

person or subject matter and whether a penal statute is in compliance with the Separation of

Powers Section of the Texas Constitution. Aldrich v. State, 104 S.W.3d 890, 895 (Tex. Crim.

App. 2003); see also Saldano v. State, 70 S.W.3d 873, 888 (Tex. Crim. App. 2002). Examples

of “waivable-only” rights include the right to effective assistance of counsel, the right to a jury

                                                –3–
trial, and a right conferred by a statute that affirmatively states the right is waivable only.

Saldano, 70 S.W.3d at 888; Aldrich, 104 S.W.3d at 895. “Except for complaints involving

systemic (or absolute) requirements, or rights that are waivable only . . . all other complaints,

whether constitutional, statutory, or otherwise, are forfeited by failure to comply with Rule

33.1(a).” Neal v. State, 150 S.W.3d 169, 175 (Tex. Crim. App. 2004) (quoting Mendez v. State,

138 S.W.3d 334, 342 (Tex. Crim. App. 2004)).

           In this case, the trial court neither disregarded an absolute requirement, such as

jurisdiction over the subject or person, nor denied J.L.R. a waivable-only right, such as the right

to counsel or a jury trial. See Neal, 150 S.W.3d at 175; Harris v. State, 986 S.W.2d 619, 622

(Tex. App.—Tyler 1997, pet. ref’d) (appellant forfeited right to complain about trial court’s

failure to dismiss indictment by not obtaining ruling in trial court). Therefore, the only issue is

whether J.L.R. complied with rule 33.1(a). Neal, 150 S.W.3d at 175.

           During the hearing, J.L.R. did not object to the trial court’s ruling that the writ was

dismissed with prejudice.                   Further, he did not raise the issue in his motion for new trial.

Accordingly, he has forfeited his right to complain about it on appeal. See TEX. R. APP. P.

33.1(a); Neal, 150 S.W.3d at 175. 2




           2
              We would reach the same result applying civil law. See In re L.D.C., 400 S.W.3d at 576 (noting same outcome would result in
appeal of charge error in juvenile proceeding regardless of whether civil or criminal standard applied). Error in dismissing a civil case with
prejudice must be presented to the trial court and cannot be raised for the first time on appeal. Bridwell v. Mulder, 315 S.W.3d 657, 659 (Tex.
App.—Dallas 2010, no pet.); Bird v. Kornman, 152 S.W.3d 154, 161 (Tex. App.—Dallas 2004, pet. denied). J.L.R. was, therefore, required to
present his complaint about the dismissal with prejudice to the trial court in a post-judgment motion such as a motion to alter or correct the order
or a motion for new trial. See TEX. R. APP. P. 33.1(a)(1); Bridwell, 315 S.W.3d at 660.




                                                                       –4–
      We resolve J.L.R.’s sole issue against him and affirm the trial court’s order of dismissal.




                                                    /Robert M. Fillmore/
                                                    ROBERT M. FILLMORE
                                                    JUSTICE



121289F.P05




                                              –5–
                                         S
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        JUDGMENT

EX PARTE: J.L.R.                                       On Appeal from the 304th Judicial District
No. 05-12-01289-CV                                     Court, Dallas County, Texas,
                                                       Trial Court Cause No. JD-35928-W.
                                                       Opinion delivered by Justice Fillmore,
                                                       Justices O’Neill and Francis participating.

     In accordance with this Court’s opinion of this date, the trial court’s order of dismissal is
AFFIRMED.



Judgment entered this 9th day of August, 2013.




                                                       /Robert M. Fillmore/
                                                       ROBERT M. FILLMORE
                                                       JUSTICE




                                                 –6–
