Full Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-25-00253-CR ___________________________ KURTIS EVAN KING, Appellant V. THE STATE OF TEXAS On Appeal from the 213th District Court Tarrant County, Texas Trial Court No. 1876959 Before Sudderth, C.J.; Womack and Walker, JJ. Memorandum Opinion by Chief Justice Sudderth MEMORANDUM OPINION Appellant Kurtis Evan King challenges both the form and the substance of his murder conviction. Regarding form, he asserts—and the State concedes—that the written judgment contains two errors: an unauthorized deadly weapon finding and an incorrect statutory citation. As for his conviction’s substance, King argues that it must be reversed because (1) the jury charge did not recite the evidentiary rule in Article 38.36 of the Texas Code of Criminal Procedure; and (2) the trial court relied on an allegedly distinguishable case—Allridge v. State, 762 S.W.2d 146 (Tex. Crim. App. 1988)—to exclude his video and photographic evidence. But (1) this court has held that a trial court is not required to include an Article 38.36 instruction in the jury charge; and (2) King does not address the hearsay rule that provided an independent legal basis for the trial court’s exclusion of his evidence. Therefore, we will modify the judgment to correct the two form errors and affirm the judgment as modified. I. Background King sold Ellis Smith a bicycle, but the payment arrangements were disputed, and the dispute erupted into a fatal fight in a retail strip mall’s parking lot.1 The 1 King and Smith frequented the strip mall’s game rooms, which hosted both legal and illegal gambling activities. 2 parking lot2 was monitored by several surveillance cameras that captured the incident in living color. A. Smith’s Death The surveillance videos showed King and Smith arguing, swinging at one another with their fists, tussling over the bicycle, and wielding knives.3 But the fight took a fatal turn when King threw the bicycle at Smith and got into his vehicle.4 At that point, King’s vehicle was facing about 45 degrees away from Smith, with Smith standing in between the vehicle and the adjacent roadway. And as Smith picked up the bicycle and attempted to throw it in King’s direction, King turned his vehicle toward Smith and accelerated. Smith attempted to avoid being hit by backing onto the curbed, grass-lined sidewalk area that separated the parking lot from the roadway, but King continued to accelerate, hopping the curb, driving over the sidewalk, plowing across the grass, and proceeding onto the adjacent roadway—against the flow of traffic. Smith initially fell The parking lot had two rows of parking spaces—one row facing the strip mall 2 and the other facing the adjacent roadway—with a curbed, grass-lined sidewalk area in between the parking lot and the roadway. A man who worked at the strip mall testified that Smith had a large knife while 3 King had a pocketknife. 4 Earlier in the fight, King had gotten into his vehicle and started to drive away, pulling out of his parking spot and toward the lot’s exit. But rather than exiting, King drove back towards Smith, left his vehicle sitting in the middle of the parking lot, and reengaged. 3 onto the hood of King’s vehicle, then he slid in front of it before rolling underneath its tires. Several bystanders ran to carry Smith out of the roadway while King circled back into the parking lot, yelled in Smith’s direction, retrieved the bicycle, and drove away. Smith died soon thereafter. In the days that followed, King spoke with the police, was told that Smith had died, and was arrested for murder. B. Jury Trial At trial, King admitted killing Smith, but he denied doing so intentionally and without legal justification. According to King, he had not intended to hit Smith with his vehicle, and all of his actions had been in defense of himself and his property.5 King testified that his steering wheel had already been pointed in Smith’s direction6 and that he had taken the over-the-curb route out of the parking lot because he did not want to hit bystanders, was panicking, and was in a hurry to leave. He told the jury that he had ducked his head down out of fear that Smith would stab or break his windshield and that he had assumed that Smith would get out of the way. He further claimed that, When the State asked King about the contradiction between his theories of 5 accident and self-defense, King disagreed that any such contradiction existed. 6 On cross-examination, King admitted that he had turned his steering wheel in Smith’s direction but claimed he had done so to avoid hitting the pole and tree on either side of Smith. 4 when he put his vehicle in drive, a piece of luggage had knocked the gear shift into first, making the gas pedal more “touchy” than King had expected. As for why he had fled the scene, King explained that he had not realized that Smith had been seriously injured. He admitted that he “could [have] assume[d]” Smith was injured—having seen Smith “[o]n the hood” of his vehicle—but he claimed that he had been shocked to learn of Smith’s death. To support this claim, King attempted to offer video and photographic evidence showing his dramatic reaction when, during his police interview, he was told that Smith had died. These evidentiary offers came at the end of the State’s case in chief, and the State objected to the exhibits as “inadmissible hearsay” prohibited under Allridge, noting that the video contained King’s self-serving out-of-court statements to the police and that there was “no way to talk about the reactions of [King] without getting into the inadmissible hearsay.”7 See 762 S.W.2d at 151–54 (reiterating general rule “that self-serving declarations are not admissible in evidence 7 Before trial began, the trial court granted the State’s Allridge motion and required King to approach the bench before mentioning his police interview. The trial court opined that “the law [wa]s . . . pretty clear” that such interview would be “admissible if offered by the State . . . but not by the Defense.” Then, during the State’s case-in-chief, King sought to broach the topic, and the trial court reaffirmed that King’s out-of-court conversations with the police were inadmissible. King proceeded to make an offer of proof, during which he offered his videotaped police interview—in its entirety and, alternatively, in an excerpt “show[ing] his reaction to learning of [Smith’s] passing”—as well as still photographs from the interview showing his reaction to being told of Smith’s death. At the end of that offer of proof, the State referenced its pretrial motion and objected to the exhibits as hearsay. 5 as proof of the facts asserted”). The trial court agreed, sustaining the objections and excluding the evidence “as being inadmissible hearsay under Allridge.” After this trial court ruling, King took the stand in his own defense and described his reaction when he learned of Smith’s death. He testified that the news was “[l]ife-shattering” and “[s]uch a shock that [he] just couldn’t even fathom it” and “was in denial because [he] just couldn’t believe it or how it happened.” King then reurged his request to admit the police-interview photographs showing his dramatic reaction, but the State again asserted that King could not discuss the photographs without delving into his hearsay conversations with the police, and the trial court agreed. After the evidence closed, the trial court charged the jury. However, the jury charge did not recite the evidentiary rule in Article 38.36 of the Code of Criminal Procedure.8 See Tex. Code Crim. Proc. art. 38.36(a). Nor did it require the jury to unite behind a single theory of murder. Rather, the charge included three alternative theories of murder within a single general question, and only one of the theories expressly alleged the use of a “deadly weapon.” The jury found King guilty of murder, and after hearing additional punishment evidence, it assessed his punishment at 35 years’ confinement.9 8 King did not object to the Article 38.36 instruction’s omission. 9 The jury also found King guilty of aggravated assault with a deadly weapon, but the State abandoned that verdict. See Duran v. State, 492 S.W.3d 741, 749–50 (Tex. 6 C. Judgment The trial court entered judgment mostly in accordance with the verdict. But the judgment departed from the verdict in that it (1) included an express deadly weapon finding and (2) listed Penal Code Section “19.02(c)” as the relevant statute of conviction. II. Discussion King raises two challenges to the judgment’s form and two challenges to its substance. A. Form “An appellate court has the power to modify the trial court’s judgment to make the judgment speak the truth when it has the necessary information before it to do so.” Deleon v. State, No. 11-23-00163-CR, 2025 WL 1954215, at *5–6 (Tex. App.— Eastland July 17, 2025, no pet.) (mem. op., not designated for publication); see Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993); Meinzer v. State, No. 02-23-00005-CR, 2024 WL 1100478, at *8 (Tex. App.—Fort Worth Mar. 14, 2024, no pet.) (mem. op., not designated for publication). And King identifies two aspects of the judgment that do not speak the truth: (1) the deadly weapon finding and (2) the statutory citation. Crim. App. 2016) (holding that the trial court could not enter a deadly weapon finding based on aggravated assault offense when the State abandoned the verdict). 7 1. Deadly Weapon Finding King first contends that the judgment should not have included a deadly weapon finding because the jury made no such affirmative finding. Indeed, “[f]or a trial court to enter a deadly[] weapon finding in the judgment, the trier of fact must first make an ‘affirmative finding’ to that effect.” Duran, 492 S.W.3d at 745–48 (listing three ways in which a jury can make an affirmative deadly weapon finding); see Tex. Code Crim. Proc. art. 42A.054(b), (c). The State concedes that the jury made no such finding in this case, and it agrees that the judgment should be modified. See Duran, 492 S.W.3d at 745–50 (modifying the judgment to delete the deadly weapon finding); see Rachal v. State, Nos. 02-18-00500-CR, 02-18-00501-CR, 2019 WL 5996985, at *7 (Tex. App.—Fort Worth Nov. 14, 2019, pet. ref’d) (mem. op., not designated for publication) (similar). We thus sustain King’s first form-related issue. 2. Statute of Conviction As for King’s second form-related issue, the State concedes it as well. King highlights that the written judgment lists Section “19.02(c)” of the Penal Code as the relevant statute of conviction but the correct citation is Section 19.02(b). The plain language of the Penal Code confirms as much. Compare Tex. Penal Code § 19.02(b) (listing elements of the offense of murder), with id. § 19.02(c) (providing that, absent an exception, murder “is a felony of the first degree”). We sustain King’s second form-related issue. See Deleon, 2025 WL 1954215, at *5–6 (modifying the judgment to “correctly reflect the statute of conviction . . . [and] that the degree of offense is a 8 second-degree felony”); Meinzer, 2024 WL 1100478, at *8 (modifying the judgment to correct the name of the offense and to reflect the separate nature of the family- violence finding). B. Substance As for King’s two substantive challenges, he asserts that the judgment must be reversed because the trial court (1) failed to include an Article 38.36 instruction in the jury charge and (2) excluded his video and photographic evidence under Allridge. 1. Article 38.36 Instruction First, King contends that the trial court’s jury charge was erroneous in that it “failed to include an [Article 38.36] instruction to consider the relationship between the involved individuals.” Article 38.36 is a rule of evidence; it provides that, in murder prosecutions, “the [S]tate or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the [defendant] and the deceased” as well as those facts and circumstances “going to show the condition of the mind of the [defendant] at the time of the offense.” Tex. Code Crim. Proc. art. 38.36(a); see Owens v. State, 549 S.W.3d 735, 745 (Tex. App.—Austin 2017, pet. ref’d). This court has held that, “[a]lthough it is permissible to give an instruction based upon [A]rticle 38.36, it is not mandatory,” and a trial court does not err by failing or refusing to give such an instruction. Roberson v. State, 144 S.W.3d 34, 41–42 (Tex. App.—Fort Worth 2004, pet. ref’d) (holding that 9 the trial court did not err in denying a requested Article 38.36 instruction). And although King attempts to distinguish and minimize this precedent, his attempts are unpersuasive in light of the body of case law holding similarly. “Texas courts have [repeatedly] held that Article 38.36(a) is a rule of evidence, that trial courts are not required to give such an instruction to the jury, and that it is not reversible error for a trial court to refuse to give such an instruction.” Owens, 549 S.W.3d at 745; accord Fino v. State, No. 05-17-00169-CR, 2018 WL 3829781, at *13–14 (Tex. App.—Dallas Aug. 13, 2018, pet. ref’d) (mem. op., not designated for publication) (“Courts have held that the rule in article 38.36 and its predecessors is a rule of evidence and that the trial court is not required to give such an instruction to the jury.”); Roberts v. State, No. 06- 16-00082-CR, 2017 WL 2961473, at *8 (Tex. App.—Texarkana July 12, 2017, pet. ref’d) (mem. op., not designated for publication) (“Because inclusion of an Article 38.36 instruction is not required, the trial court did not err in omitting it.”); Milner v. State, 262 S.W.3d 807, 809 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (“Many courts have held that the rule stated in Article 38.36 and its predecessors is a rule of evidence and that the trial court is not required to give an instruction on it to the jury.”). We overrule King’s first substantive issue. 10 2. Exclusion of Evidence Finally, in King’s second substantive issue, he argues that the trial court erred by relying on Allridge to exclude the video of and photographs from his police interview. In Allridge, the Court of Criminal Appeals reaffirmed that “self-serving declarations of the accused are ordinarily inadmissible in his behalf, unless they come under some exception.” 762 S.W.2d at 151–54 (holding that the trial court did not abuse its discretion by excluding the defendant’s written statements). According to King, “[t]he State’s objection [to his video and photographs] relied on Allridge . . . , but Allridge applies when the defendant does not testify,” and “King testified[,] making Allridge distinguishable.” But while the trial court cited Allridge as “control[ling]” authority supporting the exclusion of King’s evidence, it also cited the hearsay rule. The trial court found that King’s exhibits were “inadmissible hearsay” and agreed with the State that King “c[ould] n[o]t get into [the photographs] without eliciting hearsay responses.” See Tex. R. Evid. 802 (providing that “[h]earsay is not admissible”). Yet, King focuses his appellate argument exclusively on distinguishing Allridge without addressing the hearsay rule. He recites the State’s hearsay objection and his trial counsel’s retort as part of the relevant procedural history, but he does not explain why his exhibits were not “inadmissible hearsay,” clarify how he could have laid the predicate for or “g[otten] into [the photographs] without eliciting hearsay responses,” 11 or otherwise discuss the issue.10 In fact, King’s opening brief does not even cite to the Rules of Evidence at all. See Tex. R. Evid. 801 (defining hearsay), 802 (providing general rule prohibiting the admission of hearsay), 803–04 (providing exceptions to rule against hearsay). And when, as here, “an appellant fails to challenge all independent grounds supporting the trial court’s [evidentiary] ruling . . . , we must affirm the trial court’s ruling on the unchallenged ground.” Jaen v. State, No. 02-23- 00260-CR, 2025 WL 2088286, at *8–10 (Tex. App.—Fort Worth July 24, 2025, no pet.) (mem. op., not designated for publication) (affirming the trial court’s admission of a video when the trial court’s ruling relied on two grounds and, on appeal, the appellant challenged just one of the two grounds); Petty v. State, No. 02-21-00130-CR, 2022 WL 4545532, at *5–6 (Tex. App.—Fort Worth Sept. 29, 2022, pet. ref’d) (mem. op., not designated for publication) (affirming the trial court’s ruling on an outcry witness when its ruling relied on two grounds and, on appeal, the appellant challenged just one of the two grounds). 10 After the State pointed out the hearsay basis for the trial court’s ruling, King filed a reply brief challenging the trial court’s reliance on the hearsay rule. But “new issues raised in a reply brief should not be considered.” Chambers v. State, 580 S.W.3d 149, 161 (Tex. Crim. App. 2019) (endorsing the rule and distinguishing between arguments raising new issues and arguments expounding on the issues raised in the original brief); State v. Ford, 673 S.W.3d 749, 751–52 (Tex. App.—Waco 2023, no pet.) (affirming a trial court’s order granting a new trial on an unchallenged ground and rejecting the State’s attempt to address the unchallenged ground for the first time in its reply brief). 12 Thus, whether or not Allridge supported the trial court’s exclusion of King’s evidence, we must affirm the trial court’s ruling on the unchallenged hearsay ground.11 See Jaen, 2025 WL 2088286, at *8–10; Petty, 2022 WL 4545532, at *5–6. We overrule King’s second challenge to the judgment’s substance. III. Conclusion Having sustained King’s two challenges to the judgment’s form and overruled his two challenges to its substance, we modify the judgment to delete the deadly 11 Even if King had challenged all of the grounds for the trial court’s exclusion of his evidence, his challenges would fail. Regarding the video, King seemingly acknowledges that Allridge supported the video’s exclusion unless and until he testified, and when the trial court ruled on the video’s exclusion, King had not yet taken the stand. Thus, when the trial court ruled, Allridge controlled. As for the photographs—which, unlike the video, King offered into evidence again after he took the stand—King’s testimony provided substantially similar evidence of his alleged shock at learning of Smith’s death. See Tex. R. App. P. 44.2(b); Mosley v. State, 983 S.W.2d 249, 257–58 (Tex. Crim. App. 1998) (op. on reh’g) (recognizing that “the admission of evidence similar to what the appellant wished to offer may . . . mitigate against the harm he would have otherwise suffered”); Mitchell v. State, No. 07-22-00359-CR, 2023 WL 4635054, at *4 (Tex. App.—Amarillo July 19, 2023, pet. ref’d) (mem. op., not designated for publication) (“The standard for the exclusion of cumulative evidence and harmless error dictates that no harm results when evidence is excluded if other similar evidence is admitted.”); see also Jackson v. State, No. 02-24-00417-CR, 2026 WL 547518, at *8 & n.12 (Tex. App.—Fort Worth Feb. 26, 2026, no pet.) (mem. op., not designated for publication) (noting that, even if the trial court had erred in excluding the exhibits, such error was harmless because the exhibits’ contents came in elsewhere). Although King insists that the photographs were “objective evidence” with more credibility than his “self-interested” testimony, we disagree—the photographs depicted an earlier instance of King making the same “self-interested” representation of himself as shocked. 13 weapon finding and correct the statute of conviction, and we affirm the judgment as modified. See Tex. R. App. P. 43.2(b). /s/ Bonnie Sudderth Bonnie Sudderth Chief Justice Do Not Publish Tex. R. App. P. 47.2(b) Delivered: October 15, 2026 14