Affirmed and Memorandum Opinion filed November 19 , 2013.

In The 

## Fourteenth Court of Appeals

NO. 14

- 12

- 00919

- CR

LABYRON JAFFAR WARRE N , Appellant

V.
THE STATE OF TEXAS , Appellee

On Appeal from the Crim inal Dist rict C our t

Jefferson County, Texas Trial Court Cause No. 11

- 11203

M E M O R A N D U M O P I N I O N

A ppellant La byron Jaffar Warren was a juvenile when he was involved in
the murder of a store clerk during the robbery of a grocery store in Beaumont,
Texas. 1 Appellant was tried as an adult for capital murder and convicted by a jury

1 This appeal was transferred to this court from the Ninth Court of Appeals. In cases transferred from one court of appeals to another, the transferee court must decide the case in accordance with the preced ent of the transferor court if the transferee court ’ s decision would have been inconsistent with the precedent of the transferor court. See Tex. R. App. P. 41.3.2

of this offense. T he trial court sentenced him to life imprisonment

. On appeal, he challenges his conviction on the grounds that: (1) the record does not estab lish that the trial court had proper jurisdiction over him; (2) the trial court abused its discretion in admitting extraneous offense evidence during the guilt

- innocence phase of his trial over his objection; (3) the trial court abused its discretion in

pe rmitting the State, over appellant ’ s objection, to inject character evidence before the jury when appellant had not placed his character at issue; and (4) the State was permitted to engage in prejudicial jury argument that denied appellant a fair trial.
W e affirm.

B ACKGROUND 2
On August 1, 2010, appellant and others robbed a grocery store in Beaumont wearing masks and carrying firearms. During the course of the robbery, a female store clerk, Dang Minh Nguyen, was shot and killed. Appellant was identified as
one of the actors involved in the store robbery and murder. At the time of the offense, appel lant was sixteen years old, but was certified to stand trial as an adult by the juvenile court.
A Jefferson County grand jury indicted appellant on charges of capital murder. He was tried by a jury and found guilty as alleged in the indictment. The
trial court sentenced him to confinement for life in the Institutional Division of the Texas Department of Criminal Justice. 3 This appeal timely followed.

2 Appellant has not challenged the sufficiency of the evidence, so we provide a brief background here for context and discuss the evidence necessary for resolution of the issues as we address them below

.

3 See Tex. Penal Code Ann. § 12.31(a)(1).3 J URISDICTION In his first issue, appellant asserts that the record fails to establish that the
trial cour t had proper jurisdiction over him. Specifically, he asserts that the waiver of jurisdiction by the juvenile court contained in our record states that appellant

was previously transferred to criminal court under cause number 10

- 09241. Appellant was indic ted by the grand jury on March 3, 2011 in cause number 11

- 11203. Thus, according to appellant, the waiver of jurisdiction by the juvenile

court ― is separate and distinct from the prosecution made the basis of this appeal. ‖
The juvenile court has exclusive original jurisdiction over children under seventeen years of age. See Tex. Fam. Code Ann. § 51.04(a). In certain circumstances, a juvenile court may waive jurisdiction and transfer the child to a
district or criminal district court. Id. § 54.02. ― Unle ss the juvenile court waives jurisdiction under Section 54.02, Family Code, and certifies the individual for criminal prosecution or the juvenile court has previously waived jurisdiction under that section and certified the individual for criminal prosecut ion , ‖ a person under seventeen may not be prosecuted for or convicted of any offense with several enumerated exceptions not applicable here. Tex. Penal Code Ann. § 8.07(b) (emphasis added)

. Here, t he waiver found in our record under juvenile cause number F

- 11667

- J , signed February 24, 2011, is entitled ― Waiver of Jurisdiction and Order of
Transfer to Criminal Court for Juvenile P reviously Certified as an Adult

. ‖ In it, the 279th District Court of Jefferson County, sitting as a juvenile court, s tated that appellant personally appeared with his attorney, his mother, and the assistant district attorney for a hearing on the State ’ s motion for transfer to a criminal
district court . The court found that appellant was sixteen years o ld at the time that he committed the offense, intentionally causing the death of Dang Minh Nguyen4

by the use of a firearm while in the course of committing and attempting to commit the offense of robbery , on or about August 1, 2010

.
T he court further foun d that the 317th District Court of Jefferson County had previously waived exclusive original jurisdiction over appellant a nd transferred juvenile cause number C

- 11466

- J, which occurred on or about May 20th, 2010, to the appropriate Jefferson County cri minal court. The court found that the previously transferred case was now styled State of Texas v. Labyron Jaffar
Warren and assigned cause number 10

- 09241 in the Criminal District Court of Jefferson County. 4 This case was pending in Jefferson County and had not been
decided or dismissed

. The juvenile court found that it was ― contrary to the best
interest of th e public to retain jurisdiction ‖ of appellant under juvenile cause
number F

- 11667

- J , the capital murder of Dang Minh Nguyen

. T he court explicitly
stated that the findings, waiver of jurisdiction, tra nsfer, and certification of juvenile
cause number C

- 11466

- J were made a part of the waiver of jurisdiction and transfer order for the capital murder offense.
Accordingly
, there is a waiver of jurisdicti on pursuant to section 54.02 of the Family Code and certification of appellant for criminal prosecution for the offense
for which he was later indicted. 5 See Tex. Penal Code Ann. § 8.07(b). Moreover, the waiver reflects that another juvenile court had previously waived jurisdiction and certified appellant for criminal prosecution for a prior offense

. See id. Thus, the record reflects that the criminal district court properly acquired jurisdiction over appellant. Accordingly, appellant ’ s first issue i s overruled.

4 The rec ord reflects that this cause number is for the offense of burglary of a habitation, evidence that the State intended to use under Texas Rules of Evidence 404(b) and 609(f) against appellant during his capital murder trial.

5 Appellant could not have been i ndicted in the criminal district court for the capital murder case at issue here until the juvenile court had waived jurisdiction. Thus, the indictment in this case post

- dates the waiver of jurisdiction.5 A DMISSION OF C HARACTER OR R EPUTATION E VIDENCE In his second and third issues, appellant asserts that the trial court abused its discretion in admitting, over his objection, evidence of extraneous offenses and evidence of his reputation during the guilt

- innocence phase of his trial. The admission of evidence is within the discretion of the trial court, and the trial court
will not be reversed absent an abuse of discretion. Moses v. State , 105 S.W.3d 622, 627 (Tex. Crim. App. 2003); Woods v. St ate , 301 S.W.3d 327, 332 (Tex. App.

— Houston [14th Dist.] 2009, no pet.). A trial court does not abuse its discretion if its evidentiary ruling was within the ― zone of reasonable disagreement, ‖ and was correct under any legal theory applicable to the case. Winegarner v. State , 235 S.W.3d 787, 790 (Tex. Crim. App. 2007); Woods , 301
S.W.3d at 332.
During direct examination
, one of appellant ’ s alibi witnesses , Kathy Hancock, testified that she knew appellant did not commit this offense ― [b]ecause he not [si c] that type of person. I been knowing [sic] him all my life. ‖ After
Hancock testified on direct, the prosecuting attorney, outside the presence of the jury, asserted that the defense had ― opened the door ‖ to appellant ’ s numerous

― referrals to the juvenile probation department ‖ by eliciting this testimony from this witness. The prosecutor argued that Hancock had called appellant ’ s character into question and inferred appellant was of good character. The prosecutor stated
he intended to ask Hancock if she was aware of certain specific past acts of appellant and ask her if it changed her opinion regarding appellant ’ s character. Appellant ’ s counsel objected to the presentation of these past acts under Texas Rules of Evidence 402, 403 and 404(a), as w ell as asserting that appellant had been

a juvenile when the acts were committed and that several of the referrals had never6

been ― adjudicated. ‖ Appellant ’ s counsel further argued that any probative value

was ― hig hly outweighed by the prejudicial effect. ‖
The trial court overruled appellant ’ s objection s , stating its reasoning on the
record as follows:

In the course of questioning of the witness, Kathy Hancock, the witness made some statements which were tantamount to her speaking as a character witness on behalf of the defense and that puts the rules of evidence into play under Rules 404 and 405 of the Texas Rules of Evidence. The State has now, based upon the presentation of that testimony, requested that the State be allowed to inquire on cross

examinati on concerning conduct, other alleged conduct, of the defendant and the rules are straightforward. While evidence of a person ’ s character or character trait is not admissible for the purpose of proving action in conformity therewith on a particular occasio n, the accused

-- any criminal may place his character in issue by offering evidence of his good character and the Court will find that that has been done in this case under the circumstances of the statements of Kathy Hancock. By placing his character at issue, the accused opens the door to rebut evidence of his good character with his own evidence of the accused ’ s bad character. On cross

- examination, the State may test the character witness ’ familiarity with the defendant ’ s character or demonstrate that the witness has a low standard for what he or she considers good character by inquiring into prior, specific instances of conduct that are inconsistent with the particular character trait but the State may not offer extrinsic evidence regarding the prior incidents solely to show the character witness is wrong in his opinion. The Court has reviewed what the State is wishing to inquire about; and, first, on cross

- examination under Rule 405, the State must have a factual basis for the incidents it intends to inquire into. The Court has reviewed the in

- depth records from the juvenile probation office concerning these matters that the State wants to inquire into and the Court finds that there is sufficient, factual basis to inquire into it

on cross

- examination into these particular matters on cross

examination under Rule 405. Second, the specific instances must be relevant to and inconsistent with the character trait at issue. Here, the witness stated7

essentially, ― He didn ’ t do it. He ’ s not that type of person. I ’ ve known him all his life. ‖ That under the law allows the State to cross examine that witness on acts relevant to alleged acts or conduct of the defendant that would be relevant to her

-- the witness ’ analysis of her belief that he is not the t ype of person who would commit the crime at issue and the Court will allow a portion of the items that have been requested to be inquired into that the Court has discussed with the parties. And the Court expects the State to follow the rules in inquiry in the method of inquiry and not go beyond what is allowed under the law during cross

- examination regarding the witness ’ character expression of the defendant or expression of character.

A witness who testifies to a defendant ’ s good character may be cross

ex amined to test the witn ess ’ s awareness of relevant ― specific instances of
conduct. ‖ Wilson v. State , 71 S.W.3d 346, 350 (Tex. Crim. App. 2002) (citing Tex. R. Evid. 405(a)). Such o pinion witnesses should be asked ― did you know ‖ questions. See id. The S tate asked Hancock if she was aware of numerous specific
instances of appellant ’ s past conduct. To each question, Hancock replied, ― No. ‖ The State followed up to each question by asking her if she had known of this conduct, would it have changed her opin ion of appellant ’ s character. Again, to each question, she replied, ― No. ‖ Hancock testified that the only thing that would change her opinion about appellant’s character is if ―he would have done

-- had
one murder.‖

Because Hancock testified as to her opinion of appellant, the State was entitled to test her knowledge about specific instances of conduct involving appellant by asking a series of ― did you know ‖ questions. See id. Accordingly, the trial court did not abuse its discretion in admitting this evidence

. 6 See id. at 351.

6 We note that, as described above, the trial cou rt inquired into the relevancy of the particular character traits at issue and the factual basis for the alleged bad acts outside the presence of the jury, even though appellant failed to object to the admission of this evidence on this basis. See id. at 351.8

For the foregoing reasons, 7 we overrule appellant ’ s second and third issues.

J URY A RGUMENT In appellant ’ s fourth and final issue, he asserts that the State engaged in the following improper jury argument:

I asked you what is justice during voir dire and making persons pay the consequences for the actions even when they don ’ t want it as part of it, protecting our community from this person. Because if he ’ s who we say he is, he ’ s not going to stop. So, it is important. Your de cision is important for the victim. Ms. Dang Nguyen was a 20

- year

- old, West Brook graduate going to college. She was an innocent, sweet girl and I wish as part of justice in evaluating what justice is, you must evaluate what has been taken and I wish I g ot to tell you what sort of person she was. But to be honest with you, we all know someone just like her, someone in your life. That could be your 20

- year

- old daughter and all she was doing was going to school and working. It could be somebody you see i n the library. It could be somebody

-- one of your own children, one of your own nieces. It could be you. It could be somebody you walk up to at a counter at a convenience store or in the mall. That ’ s her, and she didn ’ t deserve this. Appellant made n o objection to the State ’ s closing argument. A defendant ’ s failure to object to a prosecutor’s jury argument forfeits the right to complain about the argument on appeal. Cf. Mays v. State , 318 S.W.3d 368, 393

– 94 (Tex. Crim.

7 Appellant additionally complains on appeal that these prior acts of misconduct were inadmissible under Texas Family Code section 51.13(b), which provides that adjudications or dispositions of a child or evidence adduced in a hearing under the Juven ile Justice Code may only be used, as is relevant here, in sentencing proceedings in criminal court against the child. See Tex. Fam. Code Ann. § 51.13(b). However, this argument does not comport with the objection s he raised at trial; thus we do not cons ider this argument on appeal. See Wilson v. State , 71 S.W.3d 346, 349 (Tex. Crim. App. 2002) (stating that to preserve error for appellate review, the complaining party must make a specific and timely objection, obtain a ruling, and his issue on appeal mu st comport with the objection made at trial); Williams v. State , 402 S.W.3d 425, 437 (Tex. App.

— Houston [14th Dist.] 2013, pet. ref’d) (―Because appellant’s arguments on appeal do not comport with the objections raised in the trial court, he has failed to preserve these arguments for appellate review.‖)

.9

App. 2010) (refusing to consid er propriety of prosecutor ’ s punishment argument because appellant failed to object); see also Threadgill v. State , 146 S.W.3d 654, 670 (Tex. Crim. App. 2004) (citing Cockrell v. State , 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (en banc)).

We overrule app ellant ’ s fourth issue.

C ONCLUSION Having overruled all of appellant ’ s issues, we affirm the trial court ’ s judgment.

/s/ Sharon McCally Justice
Panel consists of Justices McCally, Busby, and Simmons. *
Do Not Publish

— Tex. R. App. P. 47.2( b).

* Former Justice Rebecca Simmons, sitting by assignment.