Kellen Warren Tramel v. the State of Texas

In the
Court of Appeals
Sixth Appellate District of Texas at Texarkana

No. 06-25-00053-CR

KELLEN WARREN TRAMEL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 8th District Court
Hopkins County, Texas
Trial Court No. 2430253

Before Stevens, C.J., van Cleef and Rambin, JJ.
Memorandum Opinion by Justice van Cleef
MEMORANDUM OPINION

A Hopkins County jury found Kellen Warren Tramel guilty of aggravated assault with a

deadly weapon and, after finding both punishment enhancement paragraphs true, assessed

Tramel’s sentence at sixty-seven years’ incarceration. See TEX. PENAL CODE ANN. § 22.02(a)(2)

(Supp.). On appeal, Tramel challenges (1) the sufficiency of the evidence to support (a) the

deadly weapon finding and (b) the finding of true as to the enhancement paragraphs (issues one

and five), (2) the trial court’s denial of his motion to suppress regarding the extent of the search

conducted at his shop (issue two), and (3) the trial court’s admission of evidence of his prior

misconduct and jail time (issues three and four). Because we find that a rational jury could

conclude beyond a reasonable doubt that Tramel was in possession of a deadly weapon and that

there was no error in the trial court’s denial of Tramel’s motion to suppress or in the trial court’s

admission of rebuttal evidence, we affirm the trial court’s judgment.

I. Evidence At Trial

Deputy Bobby Osornio of the Hopkins County Sheriff’s Office (HCSO) testified that he

was dispatched to a disturbance call involving a firearm on November 13, 2023. When he first

arrived at the scene, he encountered Tonya Perez, who stated, “He shot at me. He’s got a gun.

He’s going to kill me.” Perez continued past Osornio to the next patrol vehicle, and Osornio

drove down toward the residence on the property, which he had been to before. Osornio testified

that he and other officers attempted to locate Tramel inside the residence, but he was not there.

The officers searched for approximately an hour before using a drone with a thermal camera to

successfully locate Tramel hiding on the property.

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Osornio also testified that he photographed the scene and the evidence that was located,

which included a shotgun found in Tramel’s pickup truck and a spent shell casing. On cross-

examination, Osornio confirmed that there was no way to determine who placed the shotgun in

the truck or whether the spent casing found was from Tramel shooting at Perez.

HCSO Deputy Brennan Murray was also on the scene the night of the incident and

testified that Perez was in his patrol vehicle during the search for Tramel. Murray’s body-

camera footage was admitted into evidence and played for the jury, wherein Perez informed

Murray that Tramel had shot at her and threatened to kill her if the police showed up. Perez gave

Murray details as to where she had been when Tramel shot at her, and Murray stated that he

searched that area for evidence to corroborate what she had told him and located a spent shotgun

shell.

HCSO Patrol Sergeant Joshua Davis was the arresting officer on scene who procured

Tramel’s consent to search “the shop” for a firearm. During the search of the shop, the officers

searched Tramel’s pickup truck, which was “pulled just into the shop.” In the truck, officers

found a shotgun and a box of shotgun ammunition that matched the shell casing located outside.

After the shotgun was located, Tramel refused to have a gunshot residue test done, but officers

subsequently obtained a warrant to do so.

HCSO Chief Investigator Corley Weatherford testified that in addition to being the

officer who handled the drone to search for Tramel that evening, he also secured a search

warrant to test for gunshot residue on Tramel. Weatherford gathered a sample from Tramel,

secured it, and labeled it for analysis. Weatherford, with consent from Tramel, also took

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possession of Tramel’s cell phone and conducted a search of the cell phone, discovering, among

other things, text messages between Tramel and Perez and between Tramel and his mother,

Linda Tramel, who was also present at the scene during the investigation. Weatherford stated

that there were also recordings that depicted prior arguments between Tramel and Perez, several

of which were played for the jury.

Text conversations between Tramel and his mother after the incident, while officers were

still searching for Tramel, indicate that Tramel was aware that there was a gun in his truck and

that he asked Linda to say, “Julie drives [the] truck.” He told Linda that he did not have a

weapon on him and that the cartridge the police found was also from “Julie.” Tramel wanted his

mother to tell the officers that he had been picked up and was staying away from the house for

the night. Linda suggested he turn off his location on his cell phone. Tramel was subsequently

located using cell phone tracking and the drone.

Weatherford agreed that it was “within the realm of possibility” that gunshot residue

could have been transferred from the arresting officers to Tramel but indicated that he was

unsure of any “exact probability” of that occurring. Thomas White, a forensic chemist for the

Texas Department of Public Safety Crime Laboratory, analyzed the sample taken from Tramel

and confirmed the presence of one primer residue particle, which indicates “the individual

having recently either fired a weapon, been near a weapon when it was fired or come into contact

with some surface that had gunshot primer residue particles on it, such as if he had handled a

firearm or handled a spent cartridge case.” White further explained that, “with some very rare

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exceptions, there is almost nothing else that can generate a particle containing the lead, barium

and antimony with a molten appearance” that was detected in Tramel’s sample.

Perez testified that she and Tramel were involved in a romantic relationship, and at the

time of the incident, they lived on Tramel’s mother’s property. She described her relationship

with Tramel as “[c]haos” with “a little bit of happiness.” She admitted she had a pill addiction,

specifically Xanax, which Tramel often supplied her. Perez stated that they had a tumultuous

relationship and that she was also to blame for some of the troubles they faced. She stated that

there were times that Tramel got physical with her, pushing or threatening her.

On the night of the incident, Perez stated that she had told Tramel she planned to move

back to Florida, and he attacked her without warning. She was able to get outside and call the

police. Perez explained that she intended to call back and say it was just an accident but that

Tramel then came outside with a gun “yelling and screaming” before “[h]e shot the gun.” She

called 9-1-1 again after he shot the gun because she believed “he was going to kill [her].” Perez

said that Tramel threatened to “blow [her] F-ing brains out” if she called the police. She tried

apologizing to calm Tramel down and eventually ran to Linda’s house to get help but ended up

hiding in the bushes until the police arrived. When the police arrived, she ran to them to seek

safety.

After the incident, she and Tramel eventually lived together again while the charges were

pending. Perez also attempted to have the State drop the charges against Tramel. Perez

explained that she felt guilty for “trigger[ing]” the incident by saying she wanted to return to

Florida and wanted to keep Tramel out of jail. Perez visited Tramel in jail and said that he tried

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to get her to say that she was the one with the gun and that it accidentally discharged when he

tried to take it from her.

On cross-examination, Perez could not recall if she had put in her written statement that

Tramel shot at her, but she reaffirmed that she told the police that he had. She repeatedly

disagreed with the defense’s assertion that she was concocting the story to have Tramel arrested.

Linda testified that the relationship between Tramel and Perez was “toxic.” She

described Perez as erratic, oftentimes related to her pill addiction. Linda stated that on the night

of the incident, she was awakened by Perez “beating on [her] door,” but when Linda went out,

Perez was gone. Linda stated that she did not hear any gunshots that evening. Linda explained

that the shotgun that was recovered by police belonged to her late husband and was usually

stored at her home but that Perez had borrowed it at some point. Linda stated that other people

also had access to the shotgun, including her grandson, who would fire the shotgun on the

property at times.

On cross-examination, Linda denied having heard a loud noise on the property the night

of the incident. When confronted with her text message exchange with Tramel in which she

wrote, “How did the power go out? We heard a noise,” Linda maintained she meant when Perez

knocked on her door, even though approximately two minutes later she messages her son, “She’s

banging on [the] front door.”

Julie Ward, Tramel’s sister, also lived on Linda’s property. She explained that her son

would recreationally shoot guns on the property at times. On the night of the incident, Ward

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explained that she was awakened by the sound of arguing from Tramel and Perez, but she did not

recall hearing any gunfire.

At the close of the evidence, the jury returned a verdict of guilty of aggravated assault

with a deadly weapon. During the punishment phase, Tramel pled not true to the State’s

allegations of prior convictions. The State then presented Kenny Stillwagoner, a former

investigator with the Hopkins County district attorney’s (DA) office, who testified that, in 2014,

he witnessed a shooting occur that involved a person shooting a firearm out of the window of a

black Dodge pickup truck toward a person standing outside of an apartment building. He

followed the vehicle and watched as he waited for the police to respond. After law enforcement

arrived to back him up, they were able to access the truck, and the driver was Tramel. They

found methamphetamine in the truck and located a shotgun and shotgun shell where

Stillwagoner saw Tramel “milling around” after the incident before law enforcement arrived.

Stillwagoner confirmed that there was also a passenger in Tramel’s vehicle but stated that

Tramel confessed to the shooting.

The State then introduced two “penitentiary packets” (pen packet) through Robert Stout,

an investigator for the DA’s office. Stout confirmed that the two packets reflected that Tramel

was the offender in each case and that Tramel had two previous convictions with judgments

entered against him for which he “went to the penitentiary on two separate occasions.”

Linda testified in the punishment phase as well, discussing Tramel’s health concerns and

medical conditions and, ultimately, indicating that Tramel should be given the opportunity to

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rehabilitate himself and do better with his life. She also confirmed that Tramel had been

incarcerated twice.

The jury then returned its verdict on punishment and, having found both prior convictions

true, assessed Tramel’s sentence at sixty-seven years’ incarceration.

II. Sufficiency of the Evidence

In his first and fifth issues, Tramel raises challenges to the sufficiency of the evidence to

support (1) the deadly weapon finding and (2) a finding of true as to his prior convictions.

A. Standard of Review

“The due process guarantee of the Fourteenth Amendment requires that a conviction be

supported by legally sufficient evidence.” Braughton v. State, 569 S.W.3d 592, 607 (Tex. Crim.

App. 2018) (citing Jackson v. Virginia, 443 U.S. 307, 315–16 (1979)). “In evaluating legal

sufficiency, we review all the evidence in the light most favorable to the trial court’s judgment to

determine whether any rational jury could have found the essential elements of the offense

beyond a reasonable doubt.” Williamson v. State, 589 S.W.3d 292, 297 (Tex. App.—Texarkana

2019, pet. ref’d) (citing Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010)). “Our

rigorous [legal sufficiency] review focuses on the quality of the evidence presented.” Id. (citing

Brooks, 323 S.W.3d at 917–18 (Cochran, J., concurring)). “We examine legal sufficiency under

the direction of the Brooks opinion, while giving deference to the responsibility of the jury ‘to

fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences

from basic facts to ultimate facts.’” Id. (quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.

8
App. 2007) (citing Jackson, 443 U.S. at 318–19; Clayton v. State, 235 S.W.3d 772, 778 (Tex.

Crim. App. 2007))).

“In our review, we consider ‘events occurring before, during and after the commission of

the offense and may rely on actions of the defendant which show an understanding and common

design to do the prohibited act.’” Id. (quoting Hooper, 214 S.W.3d at 13). “It is not required

that each fact ‘point directly and independently to the guilt of the appellant, as long as the

cumulative force of all the incriminating circumstances is sufficient to support the conviction.’”

Id. (quoting Hooper, 214 S.W.3d at 13). “Circumstantial evidence and direct evidence are

equally probative in establishing the guilt of a defendant, and guilt can be established by

circumstantial evidence alone.” Id. (citing Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim.

App. 2015); Hooper, 214 S.W.3d at 13). “Further, ‘we must consider all of the evidence

admitted at trial, even if that evidence was improperly admitted.’” Id. at 297–98 (quoting Fowler

v. State, 517 S.W.3d 167, 176 (Tex. App.—Texarkana 2017), rev’d in part by 544 S.W.3d 844

(Tex. Crim. App. 2018)).

1. The Evidence Was Legally Sufficient to Prove a Deadly Weapon
Finding

As necessary here, to prove aggravated assault with a deadly weapon the State must

prove that Tramel “(1) intentionally or knowingly, (2) threatened imminent bodily injury to

[Perez], and (3) used or exhibited a deadly weapon, namely a [shotgun].” Philmon v. State, 609

S.W.3d 532, 536 (Tex. Crim. App. 2020); see TEX. PENAL CODE ANN. § 22.01(a)(2) (Supp.),

§ 22.02(a)(2). “A firearm is a deadly weapon per se.” Ex parte Huskins, 176 S.W.3d 818, 820

(Tex. Crim. App. 2005) (orig. proceeding) (citing TEX. PENAL CODE ANN. § 1.07(a)(17)(A)).
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“‘Use’ means that ‘the deadly weapon was employed or utilized in order to achieve its purpose,’

the commission of the assault.” Ramos v. State, No. 03-24-00350-CR, 2025 WL 2677894, at *4

(Tex. App.—Austin Sept. 19, 2025, no pet.) (mem. op., not designated for publication) (quoting

Patterson v. State, 769 S.W.2d 938, 941 (Tex. Crim. App. 1989)). “‘Exhibit,’ on the other hand,

‘means that the weapon was consciously shown or displayed during the commission of the

offense.’” Id. (quoting Patterson, 769 S.W.2d at 941).

In his first issue, Tramel argues that the State did not meet its burden of proving that he

used or exhibited a deadly weapon. While Tramel attempted to discredit the testimony of Perez

regarding what happened, a victim’s testimony alone can be sufficient to support a deadly

weapon finding. See Gomez v. State, 685 S.W.2d 333, 336 (Tex. Crim. App. 1985) (“Testimony

regarding the use of a revolver is sufficient to support a finding of use and exhibition of a deadly

weapon.”); see also Wright v. State, 591 S.W.2d 458, 459 (Tex. Crim. App. [Panel Op.] 1979)

(concluding that victim’s testimony that defendant drew a “‘gun,’ ‘pistol,’ or ‘revolver’” and

demanded money was “sufficient to authorize the jury to find that a deadly weapon was used”);

Riddick v. State, 624 S.W.2d 709, 711 (Tex. App.—Houston [14th Dist.] 1981, no pet.) (holding

that where witness has positively identified weapon as pistol, nothing more is required to support

conviction of use of “a deadly weapon, to wit, a firearm”). The jury heard testimony directly

from Perez that Tramel exited the shop with a shotgun and fired it in her direction, threatening to

“blow [her] F-ing brains out” if she called the police. From that testimony alone, which the jury

could find credible, there was sufficient evidence to support the deadly weapon finding.

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Furthermore, the officers testified that the location of the spent shell casing corroborated

Perez’s recollection of events and that Tramel tested positive for gunshot residue, which

indicated that he had “either fired a weapon, been near a weapon when it was fired or come into

contact with some surface that had gunshot primer residue particles on it, such as if he had

handled a firearm or handled a spent cartridge case.”

Viewing the evidence in a light most favorable to the verdict, we find that a rational jury

could have found beyond a reasonable doubt that Tramel used or exhibited a deadly weapon.

We overrule Tramel’s first issue as it relates to the legal sufficiency of the deadly weapon

finding. See Lay v. State, 359 S.W.3d 291, 295 (Tex. App.—Texarkana 2012, no pet.).

2. The Evidence Was Legally Sufficient to Support the Jury’s Finding of
True to Both Prior Convictions

In his fifth issue, Tramel argues that the evidence was insufficient to prove his prior

convictions for the felony offense of tampering with/fabricating physical evidence with the intent

to impair and the felony offense of deadly conduct, discharge of a firearm, beyond a reasonable

doubt during the punishment phase. He argues that the State relied solely on the pen packets to

support the prior convictions, but he contends that the State failed to meet its burden of proof

beyond a reasonable doubt that Tramel was the person convicted in those matters.

“To establish that a defendant has been convicted of a prior offense [for sentence

enhancement purposes], the State must prove beyond a reasonable doubt that (1) a prior

conviction exists, and (2) the defendant is linked to that conviction.” Flowers v. State, 220

S.W.3d 919, 921 (Tex. Crim. App. 2007). As our sister court discussed,

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Under Langston and Banks, a pen packet is admissible as evidence of a prior
conviction if the pen packet contains either (1) a properly certified judgment and
sentence, or (2) the “the functional equivalent of the judgment and sentence
required by Texas law.” Langston [v. State, 776 S.W.2d 586, 587–88 (Tex. Crim.
App. 1989)]; Banks [v. State, 158 S.W.3d 649, 652 (Tex. App.—Houston [14th
Dist.] 2005, pet. ref’d)]. A pen packet may contain the functional equivalent of a
judgment and sentence if its enclosed documents are properly authenticated and
representative of a final conviction. See Martin v. State, 227 S.W.3d 335, 337
(Tex. App.—Houston [1st Dist.] 2007, no pet.); Banks, 158 S.W.3d at 652–53.

Flores v. State, No. 14-10-00976-CR, 2011 WL 5009483, at *3 (Tex. App.—Houston [14th

Dist.] Oct. 20, 2011) (mem. op., not designated for publication), pet. struck, 2012 WL 85326

(Tex. Crim. App. Jan. 11, 2012) (per curiam) (not designated for publication).

In this case, the pen packets contained certified judgments of conviction for tampering

with evidence with intent to impair and deadly conduct, discharge of a firearm, and numerous

other convictions. The pen packets also contained, among other documents, the individual state

identification number assigned to Tramel, Tramel’s personal information, including his full name

and date of birth, as well as photographs of Tramel taken by the Texas Department of Criminal

Justice. The State also presented law enforcement officers familiar with Tramel and his criminal

record. Furthermore, “[t]he jury could examine the photos and description in the pen packet[s]

and compare them to [Tramel].” Kee v. State, Nos. 02-24-00312-CR, 02-24-00313-CR and 02-

24-00314-CR, 2025 WL 2088329, at *3 (Tex. App.—Fort Worth July 24, 2025, no pet.) (mem.

op., not designated for publication) (citing Yeager v. State, 737 S.W.2d 948, 951–52 (Tex.

App.—Fort Worth 1987, no pet.) (op. on remand); Billington v. State, No. 08-12-00144-CR,

2014 WL 669555, at *4 (Tex. App.—El Paso Feb. 19, 2014, no pet.) (not designated for

publication); Meek v. State, No. 03-05-00269-CR, 2006 WL 2080644, at *3 (Tex. App.—Austin

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July 28, 2006, no pet.) (mem. op., not designated for publication); Levario Diaz v. State, No. 08-

02-00389-CR, 2004 WL 2726089, at *2 (Tex. App.—El Paso Nov. 24, 2004, pet. ref’d) (mem.

op., not designated for publication); Lamkin v. State, No. 02-03-00265-CR, 2004 WL 1909292,

at *2 (Tex. App.—Fort Worth Aug. 26, 2004, pet. ref’d) (per curiam) (mem. op., not designated

for publication)). We find that sufficient evidence supports the jury’s finding of true as to

Tramel’s prior convictions. We overrule Tramel’s fifth issue.

III. Motion to Suppress

In Tramel’s second issue, he challenges the trial court’s denial of his motion to suppress

the search conducted by the officers that lead to the discovery of the shotgun in his truck.

Tramel’s issue centers on the scope of his consent, arguing that his consent was limited to “the

shop” and that the officers exceeded that consent by searching the interior of his vehicle.

A. Standard of Review and Applicable Law

“We review a trial court’s ruling on a motion to suppress evidence under a bifurcated

standard.” Martin v. State, 620 S.W.3d 749, 759 (Tex. Crim. App. 2021). “We give almost total

deference to the trial court’s findings of fact and review de novo the application of the law to the

facts.” Id. (quoting State v. Ruiz, 577 S.W.3d 543, 545 (Tex. Crim. App. 2019)). “When a trial

judge makes express findings of fact, an appellate court must examine the record in the light

most favorable to the ruling and uphold those fact findings so long as they are supported by the

record.” Id. (quoting State v. Rodriguez, 521 S.W.3d 1, 8 (Tex. Crim. App. 2017)). “We will

uphold the trial court’s ruling if it is correct under any applicable theory of law and the record

reasonably supports it.” Id.

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“The scope of consent may be limited either ‘by its expressed object’ or by any

limitations the suspect expresses when consenting.” Chung v. State, 475 S.W.3d 378, 386 (Tex.

App.—Waco 2014, pet. ref’d) (quoting Florida v. Jimeno, 500 U.S. 248, 251 (1991)). “The

standard for measuring the scope of consent ‘is that of “objective” reasonableness’ or what the

ordinary reasonable person would have understood under the same circumstances.” Johnson v.

State, 226 S.W.3d 439, 443 (Tex. Crim. App. 2007) (quoting Jimeno, 500 U.S. at 251).

B. Analysis

After Tramel was located hiding on the property, Davis asked him for consent to search

his shop for a firearm. The truck in question was parked just inside the bay door of the shop, and

Davis testified that because the truck was parked inside the shop, he searched it looking for the

firearm. In his motion to suppress, Tramel argued that the search of his vehicle “violated his

rights” because the search “exceeded the scope of his consent to search the shop.” His argument

asserts that the deputies were “limited” in their search “by explicitly requesting consent from Mr.

Tramel to search the shop” and that they exceeded that limited consent when they entered the

pickup truck.

In its order denying Tramel’s motion to suppress, the trial court stated “that it is

objectively reasonable that the scope of the unqualified consent included the vehicle—

particularly the cab of the vehicle—parked in the shop to be searched.” We agree. “We use an

objective standard of what a reasonable person would have understood to be the scope, based on

the exchange between the officer and the person allegedly giving consent.” Lopes v. State, 85

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S.W.3d 844, 849 (Tex. App.—Waco 2002, no pet.) (citing Jimeno, 500 U.S. at 251). “One does

not look for an elephant in a matchbox.” Id.

Tramel consented to the deputies searching for firearms in the shop; the vehicle, as the

parties agree, was parked partially in the area to be searched and could reasonably contain a

firearm. At no point did Tramel revoke his consent when the deputies were searching, nor did he

restrict the search to certain areas within the shop. See Velez v. State, 240 S.W.3d 261, 266 (Tex.

App.—Houston [1st Dist.] 2007, pet. ref’d). Viewing the evidence in a light most favorable to

the trial court’s ruling, see Martin, 620 S.W.3d at 759, we hold that the trial court did not abuse

its discretion by denying Tramel’s motion to suppress. We overrule Tramel’s second point of

error.

IV. Admission of Evidence

By his third and fourth issues, Tramel challenges the trial court’s admission of evidence

related to prior misconduct by Tramel as well as allowing testimony and closing argument in the

guilt innocence phase of trial that discussed his prior time spent in jail. The State responds that

the testimony complained of was admitted as rebuttal character evidence.

A. Standard of Review and Applicable Law

“Appellate courts review a trial court’s ruling on the admissibility of Rule 404(b)

evidence for an abuse of discretion.” Dabney v. State, 492 S.W.3d 309, 318 (Tex. Crim. App.

2016). “The trial court’s ruling on whether extraneous-offense evidence was admissible to rebut

a defensive theory should be upheld if it is within the zone of reasonable disagreement.” Id.

“An appellate court will not reverse a trial court’s ruling [to admit evidence] unless that ruling

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falls outside the zone of reasonable disagreement.” Burden v. State, 55 S.W.3d 608, 615 (Tex.

Crim. App. 2001). The Texas Court of Criminal Appeals has explained,

A trial court’s ruling is generally within th[e] zone if the evidence shows that
1) an extraneous transaction is relevant to a material, non-propensity issue, and
2) the probative value of that evidence is not substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading of the jury.
Furthermore, if the trial court’s evidentiary ruling is correct on any theory of law
applicable to that ruling, it will not be disturbed even if the trial judge gave the
wrong reason for his right ruling.

De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009) (footnote omitted) (citation

omitted). All relevant evidence is admissible unless it is excluded by law. TEX. R. EVID. 402.

“Evidence is relevant if . . . it has any tendency to make” the existence of any “fact [that] is of

consequence [to the] determin[ation of] the action” “more or less probable than it would be

without the evidence.” TEX. R. EVID. 401.

Further, “[e]vidence of a person’s character or character trait is not admissible to prove

that on a particular occasion the person acted in accordance with the character or trait.” TEX. R.

EVID. 404(a)(1). However,

[t]his evidence may be admissible for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or
lack of accident. On timely request by a defendant in a criminal case, the
prosecutor must provide reasonable notice before trial that the prosecution intends
to introduce such evidence—other than that arising in the same transaction—in its
case-in-chief.

TEX. R. EVID. 404(b)(2); see Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003). “The

exceptions listed under Rule 404(b) are neither mutually exclusive nor collectively exhaustive.”

De La Paz, 279 S.W.3d at 343. “Rule 404(b) is a rule of inclusion rather than exclusion.” Id.

(quoting United States v. Bowie, 232 F.2d 923, 929 (D.C. Cir. 2000)). “The rule excludes only
16
that evidence that is offered (or will be used) solely for the purpose of proving bad character and

hence conduct in conformity with that bad character.” Rogers v. State, No. 06-23-00054-CR,

2023 WL 7554328, at *4 (Tex. App.—Texarkana Nov. 15, 2023, no pet.) (mem. op., not

designated for publication) (quoting De La Paz, 279 S.W.3d at 343).

But, when a defendant raises a defensive theory, he “opens the door” for the State to offer

rebuttal evidence regarding an extraneous offense if the extraneous offense has characteristics

common with the offense for which the defendant was on trial. Dabney, 492 S.W.3d at 317.

Simply stated, “[a]s a general proposition, when a party introduces matters into evidence, he

invites the other side to reply to that evidence.” Wheeler v. State, 67 S.W.3d 879, 885 n.13 (Tex.

Crim. App. 2022) (citing Kincaid v. State, 534 S.W.2d 340, 342 (Tex. Crim. App. 1976)).

B. Analysis

Tramel first argues that the trial court erred in allowing the State to present evidence of a

prior disturbance between Tramel and Perez that Osornio responded to in July 2023. Tramel

argues that Osornio’s testimony related to the July 2023 incident carried “minimal probative

value on the central issue” and that it was cumulative of other testimony that had already been

heard. His contention is that the evidence “painted [him] as violent, controlling, and vindictive,

precisely the type of impermissible character inference that Rule 403 is designed to prevent.”

Osornio testified that in July 2023, he responded to a disturbance call at the same location

as the November incident. He explained that when he arrived, Perez had left the scene, and he

met with her at a local business nearby, where Perez informed him that there was a “disturbance”

between her and Tramel, that Tramel would not allow her to leave, and that, during that time,

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Tramel ran her clothes over with a lawn mower. Tramel had also taken her identification, credit,

and debit cards. Osornio then took Perez back to the residence, where she retrieved the items of

clothing that had not been destroyed and some of her remaining items in the shop before leaving

with a friend. Osornio explained that he remained with her to protect her from further violence if

Tramel returned.

The State argues that this evidence was admissible as rebuttal evidence after the defense

presented several witnesses who testified that Perez was manipulative and would call the police

to make false reports against her boyfriends. Tramel’s mother and sister both testified as to their

thoughts regarding Perez’s personality and demeanor, with Linda stating she believed Perez to be

“taking advantage of [her] son.” Linda described Perez as “evil” in a text message. The defense

also called a former boyfriend of Perez who testified similarly that Perez would threaten to call

the police on him, that she was addicted to pills, and that she relied on him to support her

addiction. He explained that Perez would lie and say that he assaulted her or tried to kill her.

When conducting a Rule 403 balancing test, we

must balance (1) the inherent probative force of the proffered item of evidence
along with (2) the proponent’s need for that evidence against (3) any tendency of
the evidence to suggest decision on an improper basis, (4) any tendency of the
evidence to confuse or distract the jury from the main issues, (5) any tendency of
the evidence to be given undue weight by a jury that has not been equipped to
evaluate the probative force of the evidence, and (6) the likelihood that
presentation of the evidence will consume an inordinate amount of time or merely
repeat evidence already admitted.

Price v. State, 594 S.W.3d 674, 680 (Tex. App.—Texarkana 2019, no pet.) (quoting

Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006)). “In any given case,

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‘these factors may well blend together in practice.’” Id. (quoting Gigliobianco, 210 S.W.3d at

642).

Here, the jury heard a lot of testimony regarding the contentious nature of the relationship

between Tramel and Perez. The defensive theory primarily rested on the contention that Perez

was often the aggressor, that her addiction to pills caused her to act out against Tramel, and that

she would often fabricate lies to tell law enforcement. The entire theory rested on creating a

negative image of the alleged victim in this case and to display her motive for her actions. The

State, in order to rebut the evidence, used additional evidence that included prior bad acts of

Tramel during the course of his relationship with Perez. Allowing the State to elicit testimony of

another time when Perez called the police for a disturbance was highly probative to negate the

defensive theory. Furthermore, the defense witnesses repeatedly discussed the chaotic nature of

the relationship between Perez and Tramel, discussed other arguments the couple had, and

discussed the use of drugs. The rebuttal evidence was not drawn out, the State did not consume

“an inordinate amount of time” in presenting it, and we do not see how the evidence would give

rise to a decision based on any improper basis. See Gigliobianco, 210 S.W.3d at 641–42.

Balancing the probative force of the evidence with the applicable factors, we conclude

the trial court could have reasonably determined that the probative value of the evidence was not

substantially outweighed by the danger of unfair prejudice. See TEX. R. EVID. 403; see also

Gigliobianco, 210 S.W.3d at 641–42. We overrule Tramel’s third issue.

Tramel next contests the trial court’s decision to allow the State to ask Linda about

Tramel’s prior criminal history and time spent in jail after the State argued that Linda’s

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testimony had “opened the door.” During her cross-examination, Linda discussed her beliefs

about how Perez was addicted to pills and would cause trouble because of her addiction. When

asked by the State about Tramel’s own drug use, Linda responded, “Well, yeah, but he wasn’t

mean.” After her response, the State argued that Linda’s statement opened the door to Tramel’s

violent criminal history, of which she had knowledge. Overruling a Rule 403 objection, the trial

court allowed the State to delve into a line of questioning regarding Tramel’s criminal history.

The State then elicited testimony from Linda that she was aware that Tramel had been arrested

for and convicted of discharging a firearm in the direction of a person and aggravated assault, for

which he went to the penitentiary twice. Even though she was aware of Tramel’s violent

criminal history, Linda maintained that Tramel “never hurt anybody.” Subsequently, in closing

arguments, the State reiterated the exchange by saying, “Now you do know that, ‘Now, wait a

second, Ms. Tramel. He’s not mean?’ He’s been to prison twice for shooting at people, different

people, two separate times.”

Tramel argues that the elicited testimony from Linda, as well as the State’s use of the

testimony in its closing, violated Rule 403 and amounted to “highly inflammatory character

evidence, which affected [Tramel’s] substantial rights.” As a general rule, specific acts of

misconduct may not be introduced to impeach a party or a witness. See Prescott v. State, 744

S.W.2d 128, 130 (Tex. Crim. App. 1988). However, when a party produces evidence tending to

“create[] a false impression of [his] law-abiding behavior, he ‘opens the door’ on his otherwise

irrelevant past criminal history, and opposing counsel may” introduce evidence tending to rebut

the false impression. Delk v. State, 855 S.W.2d 700, 704 (Tex. Crim. App. 1993), overruled on

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other grounds by Ex parte Moreno, 245 S.W.3d 419, 425 (Tex. Crim. App. 2008) (quoting

Prescott, 744 S.W.2d at 132); see Abshire v. State, 62 S.W.3d 857, 861 (Tex. App.—Texarkana

2001, pet. ref’d); Wells v. State, 880 S.W.2d 185, 188 (Tex. App.—Texarkana 1994, pet. ref’d);

Monkhouse v. State, 861 S.W.2d 473, 476 (Tex. App.—Texarkana 1993, no pet.). In order for

this exception to apply, however, the defense must unambiguously create a false impression of

law-abiding behavior, thereby permitting introduction of evidence of past criminal history. See

Delk, 855 S.W.2d at 704–05.

Tramel argues that the State should not have been allowed to elicit testimony regarding

his prior criminal history and that the trial court abused its discretion in admitting and permitting

the State to argue that Tramel had previously been to the penitentiary. Here, Linda’s testimony

that, while her son may have had an issue with drugs, “he wasn’t mean,” like she indicated Perez

had been, was sufficient to allow the State to rebut the “good character” evidence. In a similar

case, Harrison v. State, the defendant’s witness offered testimony that the defendant was a

“‘good’ and ‘sweet’ boy.” Harrison v. State, 241 S.W.3d 23, 27 (Tex. Crim. App. 2007). The

prosecution was then able to question the witness regarding the defendant’s prior assault

convictions and citations to rebut the testimony. Id. The Texas Court of Criminal Appeals found

that the trial court did not err in permitting that line of inquiry because “[u]nder Rules 404 and

405, if the defendant offers evidence of his good character, the prosecution can introduce its own

character evidence to rebut the implications of the defendant’s character evidence.” Id.

Linda’s testimony was replete with references to Perez’s pill addiction, chaotic behavior,

manipulation, and general bad character. However, when asked about her own son, she informed

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the jury that Tramel was “not perfect” but stated “he wasn’t mean,” in direct contrast to how she

discussed Perez earlier in her testimony. As a result, we find no abuse of discretion in the trial

court’s admission of the State’s rebuttal of the character evidence introduced by Linda with the

evidence of Tramel’s prior convictions and jail time. See id. at 27–28. We overrule Tramel’s

fourth issue.

V. Conclusion

We affirm the trial court’s judgment.

Charles van Cleef
Justice

Date Submitted: October 28, 2025
Date Decided: December 23, 2025

Do Not Publish

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