Modified and Affirmed and Opinion Filed May 24, 2023

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-22-00087-CR

EDGAR CORTEZ CARDENAS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 282nd Judicial District Court

Dallas County, Texas

Trial Court Cause No. F19-76997-S

MEMORANDUM OPINION

Before Chief Justice Burns, Justice Partida-Kipness, and Justice Breedlove

Opinion by Justice Breedlove

A jury found appellant Edgar Cortez Cardenas guilty of murder and assessed 

his punishment at 30 years’ imprisonment. In three issues, appellant contends the 

evidence is legally insufficient to support the jury’s verdict and that the trial court 

erred by admitting evidence of extraneous offenses and social media evidence. In a 

cross-issue, the State requests that we reform the judgment to correct certain errors. 

We modify the judgment and affirm as modified.
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BACKGROUND

Nadaly Salmon, age 18, was fatally shot at the California Crossing Park in 

Dallas on November 17, 2019. Appellant was indicted for Salmon’s murder and the 

case proceeded to a jury trial. During the first phase of the trial, the State offered 

testimony from thirteen witnesses about the murder and the subsequent 

investigation.

The State offered evidence that Salmon was sitting in the back seat of a parked 

car at the time of her death. Salmon’s boyfriend Jonathan Rosales was in the front 

seat of the car on the passenger side. He survived the shooting and testified at trial, 

but was not able to provide information about the perpetrators’ identity. He did, 

however, testify that the perpetrators arrived at the park in a Chevrolet Tahoe.

Police investigators found numerous shell casings at the scene, including 45 

.223 caliber casings and 28 .45 caliber casings. Although the bullet fragments 

retrieved from Salmon’s body had insufficient markings to match them with a 

specific weapon, a firearm and toolmark examiner testified at trial that they were 

consistent with a .223 caliber cartridge.

Three hours after the shooting, police stopped a black Chevrolet Silverado 

pickup truck after a drive-by shooting on Grafton Road in Dallas. Four people 

including appellant were in the truck. Appellant was wearing a bulletproof vest. 

Subsequent testing revealed gunshot residue on his hands. Police found weapons in 

the truck including a .223 caliber AR-style rifle and a .45 caliber handgun. Ballistics 
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testing later matched these weapons to shell casings found at California Crossing 

Park and at the Grafton Road crime scene.

In the days preceding Salmon’s death and on the night of the murder, appellant 

communicated through social media with one of the other occupants of the 

Silverado, Oscar Reyes. On November 5, appellant sent a message to Reyes stating, 

“You got the gun? I want to shoot somebody.” Reyes replied “Yes.” Two days later, 

appellant messaged “Let’s go shoot” to Reyes. That message was also sent to Heyby 

Cardenas, appellant’s brother, who was also in the Silverado on the night of the 

murder. Reyes replied, “Where?” and Heyby1responded “Anywhere.” 

On the night of the murder, appellant and Reyes communicated on a thread 

containing videos of a handgun and a rifle similar to those used in the shootings. 

They also communicated about appellant picking up Reyes at his home. After 

appellant told Reyes “I’m pulling up” and to “come outside,” the communications 

stopped for 14 hours. On the day after the murder, Reyes posted a photograph of a 

Tahoe for sale.

Geolocation data from appellant’s and Reyes’s phones indicated that both 

phones were in the area of the California Crossing Park at the time of Salmon’s 

murder and in the area of Grafton Road at the time of the shooting there. Both phones 

were in the area of the Silverado at the time it was stopped by police.

 

1 We refer to appellant’s brother by his first name for clarity.
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After the jury found appellant guilty, the State offered further evidence about 

the Grafton Road shooting during the punishment phase. Bullets were lodged in 

homes and vehicles in the neighborhood, although no one was hurt. Appellant 

testified during the punishment phase, explaining that although he had driven the 

Tahoe, he did not shoot Salmon. He testified that all of the shooting was done by 

Reyes and Heyby. Appellant’s mother testified, as did the mother of one of 

appellant’s children and appellant’s stepbrother. These witnesses testified that 

appellant was a good father and a hard worker. The jury sentenced appellant to 30 

years’ imprisonment and declined to assess a fine. This appeal followed.

DISCUSSION

1. Sufficiency of the evidence

In his first issue appellant contends that even when the evidence is viewed in 

the light most favorable to the jury’s verdict, it is legally insufficient to show he was 

a party to Salmon’s death. Appellant argues: (1) Salmon’s boyfriend Rosales did not 

identify him; (2) shell casings at the scene did not reveal any fingerprints or DNA; 

(3) Rosales testified that the suspects arrived in a Tahoe, but appellant was detained 

three hours later in a Silverado pickup truck; (4) Rosales testified that the guns had 

silencers, but there were no silencers on the weapons recovered by police; and 

(5) neither the cell phone evidence nor the firearm evidence proves his guilt beyond 

a reasonable doubt. In response, the State concedes that the evidence is “largely 
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circumstantial,” but argues that a rational factfinder could logically conclude that 

appellant was either a party or a principal to Salmon’s death.

Murder

A person commits murder if he intentionally or knowingly causes the death 

of an individual. TEX. PENAL CODE § 19.02(b)(1). Use of a deadly weapon raises an 

inference of intent. Cavazos v. State, 382 S.W.3d 377, 384 (Tex. Crim. App. 2012) 

(specific intent to kill may be inferred from use of deadly weapon). A firearm is a 

deadly weapon. TEX. PENAL CODE § 1.07(a)(17)(A) (definition of deadly weapon).

Law of parties

Under the law of parties, “[a] person is criminally responsible as a party to an 

offense if the offense is committed by his own conduct, by the conduct of another 

for which he is criminally responsible, or by both.” TEX. PENAL CODE § 7.01(a). “A 

person is criminally responsible for an offense committed by the conduct of another 

if: . . . acting with intent to promote or assist the commission of the offense, he 

solicits, encourages, directs, aids or attempts to aid the other person to commit the 

offense.” Id. § 7.02(a)(2). Mere presence alone will not constitute one as a party to 

an offense.

Standard of review

We evaluate a challenge to the sufficiency of the evidence under the standards 

established in Jackson v. Virginia, 443 U.S. 307, 319 (1979). See Brooks v. State, 

323 S.W.3d 893, 895 (Tex. Crim. App. 2010). We review the evidence in the light 
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most favorable to the verdict to determine whether a rational jury could have found 

the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. 

at 319; Brooks, 323 S.W.3d at 894–95. This standard of review for legal sufficiency 

is the same for both direct and circumstantial evidence. Wise v. State, 364 S.W.3d 

900, 903 (Tex. Crim. App. 2012); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. 

App. 2007). Circumstantial evidence is considered as probative as direct evidence 

and is sufficient, standing alone, to establish a defendant’s guilt. Hooper, 214 

S.W.3d at 13. Circumstantial evidence alone also may be sufficient to establish that 

a defendant was a party to an offense. Id.

In our review, “[t]he standard we must apply deals only with ‘the record 

evidence adduced at the trial.’” Delgado v. State, 635 S.W.3d 730, 745 (Tex. App.—

Dallas 2021, pet. ref’d) (quoting Jackson, 443 U.S. at 324). “This includes evidence 

both properly and improperly admitted, see, e.g., Clayton v. State, 235 S.W.3d 772, 

778 (Tex. Crim. App. 2007), but it cannot include evidence not admitted.” Id.

We defer to the trier of fact’s resolution of any conflicting inferences that are 

raised in the evidence and presume that the trier of fact, in this case the jury, resolved 

such conflicts in favor of the prosecution. Jackson, 443 U.S. at 326; Brooks, 323 

S.W.3d at 899. We will uphold the verdict unless a rational factfinder must have had 

reasonable doubt with respect to any essential element of the offense. Jackson, 443 

U.S. at 319; Brooks, 323 S.W.3d at 895. The State need not disprove all reasonable 

alternative hypotheses that are inconsistent with appellant’s guilt. Wise, 364 S.W.3d 
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at 903. Rather, we consider only whether the inferences necessary to establish guilt 

are reasonable based upon the cumulative force of all the evidence when considered 

in the light most favorable to the verdict. Hooper, 214 S.W.3d at 13.

Reversal on evidentiary sufficiency grounds is restricted to “the rare 

occurrence when a factfinder does not act rationally.” Laster v. State, 275 S.W.3d 

512, 517 (Tex. Crim. App. 2009); see Thornton v. State, 425 S.W.3d 289, 303 (Tex. 

Crim. App. 2014) (stating that a reviewing court should not act as a “thirteenth 

juror”). In other words, the appellate scales are weighted in favor of upholding a trial 

court’s judgment of conviction. Winfrey v. State, 323 S.W.3d 875, 879 (Tex. Crim. 

App. 2010).

The State’s evidence

The State relies on ballistics and firearms evidence, cell phone location data, 

evidence relating to the Tahoe and Silverado vehicles, electronic messages, and 

social media posts in support of its contention that there was sufficient evidence to 

support the jury’s verdict of guilt.

Firearms and ballistics. The State cites evidence that (1) the medical 

examiner testified that Salmon died from gunshot wounds, (2) the bullet fragments 

retrieved from Salmon’s body were .22 caliber and consistent with a .223 cartridge, 

although they could not be matched to or excluded from any specific weapon; (3) a 

crime scene technician testified that 45 of the 84 cartridge casings at the scene of 

Salmon’s death were .223 caliber cartridge casings, and a firearms examiner testified 
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that two of the casings at the murder scene were fired from an AR-style rifle 

recovered from a traffic stop; (4) that weapon was retrieved from the bed of a 

Silverado pickup truck stopped for speeding in a nearby neighborhood 

approximately three hours after Salmon was shot; (5) appellant was in the bed of the 

pickup truck with the .223 rifle when he was arrested during the traffic stop; 

(6) appellant was wearing protective body armor at the time of his arrest, which the 

arresting officer testified was unusual; (7) a trace evidence examiner testified that 

when appellant was swabbed for gunshot residue after his arrest, the examination 

revealed the maximum number of particles on each of appellant’s hands, indicating 

that appellant had either fired a gun, been in the presence of someone firing a gun, 

or had handled a gun that evening; (8) when appellant was arrested, he was in a truck 

speeding away from the direction of a drive-by shooting on Grafton Road; and (9) at 

the Grafton Road shooting location, additional .223 cartridge casings were found 

that matched the rifle used in Salmon’s murder.

Cell phone location data. The State relies on evidence that both Reyes’s and 

appellant’s cell phones were in the area of Salmon’s death at the time she was shot, 

in the area of the Grafton Road shooting at the time it occurred, and in the area of 

the traffic stop when appellant was arrested.

Vehicles. Rosales testified that he saw the shooters drive up in a Tahoe. Dallas 

Police Detective Frank Serra testified that he obtained information from “multiple 

witnesses” that the Tahoe had a lift kit and tires with dark colored rims. A Tahoe 
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matching this description appeared on Reyes’s Facebook feed, posted for sale the 

day after Salmon’s death. The State also cites Serra’s testimony that while 

investigating the murder, he saw a tan Tahoe leaving appellant’s residence but was 

unable to catch up to it to obtain a license plate number.

Electronic communications. The State relies on evidence that hours before 

Salmon was shot, appellant and Reyes sent messages to each other about getting 

together and hunting down an unidentified person. During that exchange, appellant 

sent Reyes a picture of a person holding large caliber handguns. In response, Reyes 

sent appellant a picture of a .45 handgun that looked similar to a firearm recovered 

in the traffic stop. The text conversation reflected that appellant picked up Reyes at 

Reyes’s home before Salmon’s death. After appellant picked up Reyes, their 

documented electronic conversation ended for approximately 14 hours. After his 

arrest from the stop of the Silverado, appellant had additional conversations about 

being arrested in the bulletproof vest, about the police asking him whether he or 

Reyes “was the boss,” and about whether Reyes had “snitch[ed] me out.”

Conclusion

Although the evidence was circumstantial, we conclude that a rational jury 

could have found the essential elements of murder beyond a reasonable doubt. See 

Jackson, 443 U.S. at 319; Hooper, 214 S.W.3d at 13. Salmon’s death was caused by 

the intentional use of a deadly weapon. See TEX. PENAL CODE § 19.02(b)(1) 

(murder); Cavazos, 382 S.W.3d at 384 (use of deadly weapon). The State offered 
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evidence from which a rational juror could conclude, beyond a reasonable doubt, 

that appellant acted “with the intent to promote or assist” in committing Salmon’s 

murder and aided others in committing the offense. TEX. PENAL CODE § 7.01(a) 

(parties to offenses); Id. § 7.02(a)(2) (criminal responsibility for conduct of another).

We decide appellant’s first issue against him.

2. Admission of evidence of extraneous offense

In his second issue, appellant argues the trial court erred when it admitted 

evidence of an extraneous offense, a shooting at 2727 Grafton Road that occurred 

approximately three hours after Salmon’s murder.

Admissibility of other crimes, wrongs, or acts

Rule of evidence 404(b)(1) disallows evidence of crimes, wrongs, or other 

acts solely to prove a person’s character to show that the person acted in conformity 

with that character on a particular occasion. TEX. R. EVID. 404(b)(1). Further, 

“[w]hen an extraneous offense is offered to prove identity, the common 

characteristics or the device used in each offense must be so unusual and distinctive 

as to be like a ‘signature.’” Taylor v. State, 920 S.W.2d 319, 322 (Tex. Crim. App. 

1996). “In determining similarity of the offenses for the purpose of establishing 

identity, appellate courts should take into account both the specific characteristics of 

the various offenses and the time interval between them.” Johnson v. State, 68 

S.W.3d 644, 651 (Tex. Crim. App. 2002).
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Standard of review

“When reviewing a trial court’s ruling on the admission of evidence, an 

appellate court applies an abuse of discretion standard of review.” Casey v. State, 

215 S.W.3d 870, 879 (Tex. Crim. App. 2007). “A trial court abuses its discretion 

when its decision lies outside the zone of reasonable disagreement.” Id.

Rule 404 analysis

Appellant argues that there were no unusual or distinctive common 

characteristics between Salmon’s murder and the shooting on Grafton Road. See 

Taylor, 920 S.W.2d at 322. He contends (1) the locations were not near each other; 

(2) the suspect vehicles were different; (3) no witness provided suspect descriptions; 

(4) Rosales testified the shooters used silencers on their weapons, but the weapons 

recovered did not contain silencers and were not threaded to receive silencers; 

(5) appellant was not identified as a shooter or participant at either location; (6) the 

matching shell casings were not sufficient to prove that appellant was responsible 

for the murder when there was no evidence that appellant was present at either 

location; and (7) there was no common “signature” between the two crimes. He 

concludes that because the evidence was offered only to establish that he acted in 

accordance with a character trait, it was inadmissible under rule of evidence 

404(a)(1).

The State responds that extraneous-acts evidence is admissible under both rule 

403 and rule 404(b) if it is relevant to a fact of consequence apart from its tendency 
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to prove conduct in conformity with character and the probative value of the 

evidence is not substantially outweighed by unfair prejudice. See Johnston v. State, 

145 S.W.3d 215, 219–20 (Tex. Crim. App. 2004) (discussing application of rule 

404(b)). The State contends the evidence was not submitted to prove character 

conformity, but was offered to establish appellant’s identity to the offense, and 

appellant’s identity was a central issue at trial.

The State argues that the offenses were similar. They occurred the same night, 

within three hours of each other. At the time of both offenses and appellant’s arrest, 

location data showed appellant’s and Reyes’s cell phones in the area. The police 

collected multiple cartridge casings at both scenes, demonstrating that more than one 

weapon was used. The State offered evidence that at California Crossing, police 

collected 45 cartridge casings from fired .223 caliber ammunition and 28 casings 

from fired.45 caliber ammunition. At the Grafton Road shooting, police recovered 

24 casings, 15 of which were .223 caliber and 9 were .45 caliber. At California 

Crossing, the majority of the .223 casings were located along the road. At the Grafton 

Road shooting, all the .223 casings were gathered along the road. A .223 casing from 

the Grafton Road shooting matched the .223 rifle seized by law enforcement during 

appellant’s arrest. A .223 casing from California Crossing matched the same rifle. 

The handgun seized with the rifle also matched with cartridge casings from both 

Grafton Road and California Crossing.
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The State also cites evidence that the shooters at both locations arrived 

together in a single vehicle. Rosales testified that more than two shooters opened fire 

from a single vehicle that brought them to California Crossing. In the Silverado

stopped by police after the Grafton Road shooting, fired and unfired bullets were 

found. These bullets matched the caliber of casings found at the Grafton Road crime 

scene, and the State argues this evidence supports an inference that the Silverado’s 

occupants fired their weapons from that vehicle on Grafton Road.

The evidence showed that on the same night, the same weapons were shot 

from a vehicle in two locations, and appellant’s and Reyes’s phones were in the area 

when each offense occurred. See Ransom v. State, 503 S.W.2d 810, 813 (Tex. Crim. 

App. 1974) (sufficient similarities between offenses where both were robberies 

committed a gunpoint in Dallas three days apart and the defendant was aided by a 

confederate); Sharper v. State, 485 S.W.3d 612, 622 (Tex. App.—Texarkana 2016, 

pet. ref’d) (applying Ransom to similar circumstances). We conclude the trial court 

did not abuse its discretion in admitting evidence of the Grafton Road shooting to 

show identity. See Casey, 215 S.W.3d at 879.

Rule 403 analysis

We next consider whether the evidence’s probative value substantially 

outweighed its prejudicial effect. Rule of evidence 403 provides that even relevant 

evidence may be excluded if its probative value is substantially outweighed by the 

danger of unfair prejudice, confusion of the issues, or misleading the jury; by 
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considerations of undue delay; or by needless presentation of cumulative evidence.

TEX. R. EVID. 403. “Under Rule 403, it is presumed that the probative value of 

relevant evidence exceeds any danger of unfair prejudice. The rule envisions 

exclusion of evidence only when there is a clear disparity between the degree of 

prejudice of the offered evidence and its probative value.” Hammer v. State, 296 

S.W.3d 555, 568 (Tex. Crim. App. 2009) (footnotes and internal quotation marks 

omitted). 

Accordingly, “the plain language of Rule 403 does not allow a trial court to 

exclude otherwise relevant evidence when that evidence is merely prejudicial. 

Indeed, all evidence against a defendant is, by its very nature, designed to be 

prejudicial.” Pawlak v. State, 420 S.W.3d 807, 811 (Tex. Crim. App. 2013) (internal 

citation omitted). A Rule 403 analysis generally includes balancing the following 

non-exclusive factors: (1) the probative value of the evidence, (2) the potential to 

impress the jury in some irrational, but lasting way; (3) the time needed to develop 

the evidence, and (4) the proponent’s need for the evidence. Colone v. State, 573 

S.W.3d 249, 266 (Tex. Crim. App. 2019).

As we have discussed, the evidence of the Grafton Road shooting was highly 

probative in linking appellant to the date, time, location, and weapons used in 

Salmon’s murder. See id. As for the potential of the evidence to impress the jury in 

an irrational, lasting way, the evidence of the Grafton Road shooting where no one 

was injured was no more inflammatory than the charged offense of murder. See 
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Taylor, 920 S.W.2d at 323 (“the first murder, being no more heinous than the second, 

was not likely to create such prejudice in the minds of the jury that it would have 

been unable to limit its consideration of the evidence to its proper purpose”). 

Although some time was needed to develop the evidence, including testimony from 

an officer who testified about shell casings found at the Grafton Road scene, most 

of the testimony was directed to the California Crossing crime scene, related 

ballistics, the evidence found in the Silverado at the time of appellant’s initial arrest, 

and Salmon’s injuries. See id. The State’s need for the evidence was high, as the 

matching ballistics connected specific weapons to the California Crossing crime 

scene. See Colone, 573 S.W.3d at 266. Consequently, we conclude that the 

evidence’s probative value was not substantially outweighed by the danger of unfair 

prejudice. See TEX. R. EVID. 403.

Conclusion

We conclude the trial court did not abuse its discretion by admitting evidence 

of the Grafton Road shooting. See Casey, 215 S.W.3d at 879 (standard of review). 

We decide appellant’s second issue against him.

3. Admission of social media evidence

In his third issue, appellant challenges the trial court’s admission of evidence 

gained from his social media, including photographs, written messages, and videos. 

He contends the evidence, admitted over his objection, related only to extraneous 

offenses, not to Salmon’s murder. See TEX. R. EVID. 404(b)(1) (“Evidence of a 
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crime, wrong, or other act is not admissible to prove a person’s character in order to 

show that on a particular occasion the person acted in accordance with the 

character.”). He argues (1) there were no similar characteristics between the 

extraneous offenses and the underlying charge to reveal a distinctive pattern,

(2) none of the evidence is probative of any intent regarding Salmon, and (3) in any 

event, he contested only identity, not intent, so evidence of his intent was not 

relevant.

Appellant identifies the following social media communications in his brief: 

(1) a message sent by appellant to Reyes on November 4, 2019, stating “Get ready 

‘cause I’m finna to kill somebody this weekend,” and Reyes’s reply sending a picture 

of a Glock pistol, (2) a message from appellant to Reyes on November 5, stating 

“You got the gun? I want to shoot somebody,” and Reyes’s reply, “Yes”; (3) a 

message on November 7 from appellant to Reyes and Heyby, “Let’s go shoot”; 

Reyes responded “Where?” and Heyby replied “Anywhere”; (4) a photograph sent 

by appellant on November 16 which depicted several individuals sitting around 

holding handguns, and on the same date, a photograph sent by Reyes of a .45 caliber 

handgun; (5) a photograph sent by Reyes on November 18 of a vehicle that matched 

the description of the suspect vehicle from the shooting, stating that the vehicle was 

for sale; (6) a message appellant sent on November 19 that he “had the vest on,”

(7) a message appellant sent on November 19 stating “Trying to charge us with 

murder y assault with a deadly weapon,” at a time when, according to Serra, the 
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police department had no reason to believe appellant was involved in the murder;

and (8) a message from Reyes on November 20 instructing appellant that if they 

were pulled over, appellant should “shoot them,” to which appellant replied “I don’t 

got sh**,” and Reyes responded “I give you the glock.”

2

After a hearing outside the jury’s presence, the trial court found that the 

evidence was relevant and the probative value was not outweighed by improper 

prejudice. The court ruled that the evidence was admissible if the State could lay the 

predicate for admission. Officer Serra provided the predicate testimony and the trial 

court admitted the evidence.

Standard of review

“Whether extraneous offense evidence has relevance apart from character 

conformity, as required by Rule 404(b), is a question for the trial court.” De La Paz

v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009) (internal quotation omitted). 

The court in De La Paz explained that the balance between probative value “and the 

counter factors set out in Rule 403 . . . is always slanted toward admission, not 

exclusion, of otherwise relevant evidence.” Id. Accordingly, the trial court’s ruling 

is reviewed for abuse of discretion. Id. As long as the trial court’s ruling is within 

the “zone of reasonable disagreement,” there is no abuse of discretion, and the trial 

court’s ruling will be upheld. Id. The court continued,

 

2 We note that appellant did not reference other communications from the evening of the murder, 

including his communications with Reyes reflecting that appellant picked up Reyes at Reyes’s home the 

evening of Salmon’s murder.
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A trial court’s ruling is generally within this zone if the evidence shows 

that 1) an extraneous transaction is relevant to a material, nonpropensity 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.

Id. at 343–44 (footnotes and citations omitted). Even if the trial court erred by 

admitting the evidence, we will not reverse unless the error affected appellant’s 

substantial rights. TEX. R. APP. P. 44.2(b); Gonzalez v. State, 544 S.W.3d 363, 373 

(Tex. Crim. App. 2018) (erroneous admission of evidence is non-constitutional 

error, reversible only when there is “a substantial and injurious effect or influence in 

determin[ing] the jury’s verdict”).

Extraneous offenses

An “extraneous offense” is any act of misconduct, whether resulting in 

prosecution or not, that is not shown in the charging papers. Rankin v. State, 953 

S.W.2d 740, 741 (Tex. Crim. App. 1996). Under rule 404, evidence of other crimes, 

wrongs, or other acts is inadmissible if it is offered to prove the character of a person 

in order “to show that on a particular occasion the person acted in accordance with 

the character,” but it may be admissible for other purposes, “such as proving motive, 

opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or 

lack of accident.” TEX. R. EVID. 404(b)(1), (2).

Appellant argues that because he “did not make intent an issue,” evidence of 

extraneous offenses cannot be admitted to prove his intent. He cites Rankin v. State,
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974 S.W.2d 707, 719 (Tex. Crim. App. 1996) (op. on reh’g), in support of his 

argument. In Rankin, the court explained, 

Extraneous offense evidence will generally always be relevant, but the 

permissible purpose for which the proponent is offering it may not be. 

For instance, where intent is a material issue and it is not inferable from 

the act itself, evidence of other acts probative of such intent is relevant 

and the trial court’s decision to admit such evidence is proper. Where 

the state’s direct evidence, however, clearly shows the intent element 

of the crime and that evidence is uncontradicted by the defendant or not 

undermined by cross-examination of the state’s witnesses, the offer of 

other crimes is unjustified due to the lack of relevancy. . . .

It is for this reason that the proponent of 404(b) evidence must persuade 

the trial court that the extraneous offense evidence is being offered for 

a purpose other than character conformity, and that this other purpose 

“tend[s] to make the existence of any fact that is of consequence to the 

determination of the action more probable or less probable than it would 

be without the evidence.” TEX. R. CRIM. EV. 402. If the appellate court 

finds that the proffered evidence would not tend to make the existence 

of a material fact more or less probable, then the court must conclude 

that the trial court abused its discretion.

Id. at 719 (footnotes omitted).

Even if evidence of an extraneous offense is not admissible to show intent, 

however, it may be admissible to show identity. Carter v. State, 145 S.W.3d 702, 

709 (Tex. App.—Dallas 2004, pet. ref’d). There is a two-part test for determining 

when an extraneous offense is admissible for proof of identity: (1) identity is a 

contested issue in the case, and (2) “something unique exists that connects the 

extraneous offense to the charged offense—some distinguishing characteristic 

common to both the extraneous offense and the offense charged.” Id. (internal 

quotation omitted). 
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Appellant confirms that at trial, “the Defense focused on contesting identity,” 

satisfying the first part of the test. See id. As to the second part of the test, there are 

distinguishing characteristics common to both the electronic communications and 

the murder, including but not limited to photographs of the same or similar weapons 

as those used in the offense, the photograph of a vehicle matching the description of 

the Tahoe used in the offense, and appellant’s communications about picking up 

Reyes on the night of the murder. Cf. id. at 710 (“We should not engraft exceptions 

to rule 404 that would allow extraneous offenses to be admitted when identity is an 

issue absent a distinct connection between the charged and the extraneous 

offenses.”). This evidence is probative on appellant’s identity, making it more likely 

that appellant participated in the offense. See TEX. R. EVID. 404(b)(2) (evidence of 

crime, wrong, or other act may be admissible to prove identity). 

Further, the State responds that appellant’s “extraneous offense” argument 

misses the mark because admission of extraneous offense evidence was not at issue. 

The State explains that the social media exhibits admitted at trial did not depict or 

reflect extraneous offenses. Instead, the State contends the exhibits were admissible 

under rule of evidence 404(b)(2) to show steps appellant took in preparation for the 

charged offense. See Daggett v. State, 187 S.W.3d 444, 451 (Tex. Crim. App. 2005) 

(proof of defendant’s “plan” is admissible under rule 404(b)(2) to show acts 

defendant took in preparation for ultimate charged offense). At the hearing on 

admissibility, the trial court asked the State to clarify whether the evidence was 
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offered as “extraneous offenses or bad act” or as “a part of the same criminal 

episode.” The State responded, “I believe it’s a part of the same criminal episode.” 

We conclude the trial court did not abuse its discretion in concluding that the 

evidence was relevant to issues other than character conformity, see Rankin, 974 

S.W.2d at 719, or was admissible to show appellant’s acts in preparation for the 

murder, see Daggett, 187 S.W.3d at 451. We decide appellant’s third issue against 

him.

4. Modification of judgment

In its cross-issue, the State requests that we modify the judgment to reflect 

(1) an affirmative finding on use of a deadly weapon, (2) that appellant was charged 

under penal code § 19.02(b), not § 19.02(c), and (3) that the court costs assessed 

were $286, not $289. Appellate courts may modify a trial court’s judgment and 

affirm it as modified. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 

27–28 (Tex. Crim. App. 1993). 

This Court “has the power to correct and reform the judgment of the court 

below to make the record speak the truth when it has the necessary data and 

information to do so.” Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 

1991, pet. ref’d). Appellate courts may reform trial court judgment where “the 

evidence necessary to correct the judgment appears in the record.” Id. Because we 

have the necessary information to do so, we modify the judgment in the trial court’s 

cause number F19-76997-S to reflect the jury’s deadly weapon finding, that 
–22–

appellant was charged under penal code § 19.02(b), and that the court costs assessed 

were $286.

CONCLUSION

We modify the trial court’s judgment and affirm the judgment as modified.

220087f.u05

Do Not Publish

TEX. R. APP. P. 47.2(b)

/Maricela Breedlove//

MARICELA BREEDLOVE

JUSTICE
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Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

EDGAR CORTEZ CARDENAS, 

Appellant

No. 05-22-00087-CR V.

THE STATE OF TEXAS, Appellee

On Appeal from the 282nd Judicial 

District Court, Dallas County, Texas

Trial Court Cause No. F19-76997-S.

Opinion delivered by Justice 

Breedlove. Chief Justice Burns and 

Justice Partida-Kipness participating.

Based on the Court’s opinion of this date, the judgment of the trial court is 

MODIFIED to reflect the jury’s deadly weapon finding, to reflect that that appellant 

was charged under section 19.02(b) of the Texas Penal Code, and that the court costs 

assessed were $286.00.

As MODIFIED, the judgment is AFFIRMED.

Judgment entered this 24th day of May, 2023.