                                     In The
                                Court of Appeals
                       Seventh District of Texas at Amarillo

                                      No. 07-14-00340-CR


               ALLYN SHANE DOYLE A/K/A SHANE DOYLE, APPELLANT

                                                V.

                             THE STATE OF TEXAS, APPELLEE

                            On Appeal from the 69th District Court
                                    Dallam County, Texas
                     Trial Court No. 4361, Honorable Ron Enns, Presiding

                                       October 15, 2015

                               MEMORANDUM OPINION
                  Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


        This is an appeal from a bench trial in which appellant Allyn Shane Doyle was

convicted of aggravated assault with a deadly weapon against a family member1 and

assessed punishment of 25 years in prison. Through one issue, appellant argues the

trial court erred by denying his motion for new trial. We will affirm the judgment of the

trial court.



        1
        TEX. PENAL CODE ANN. § 22.02; TEX. CODE CRIM. PROC. ANN. art. 42.013 (West 2013); TEX. FAM.
CODE ANN. § 71.003 (West 2013).
                                             Background


        Evidence at trial showed that after an argument appellant accelerated his pickup

truck in reverse toward his father, tires spinning, and “rammed [his father] up in a pile of

junk.” His father jumped into the open bed of the truck but fell out in the street after

appellant quickly accelerated forward.


        After the court found appellant guilty, the State announced it would be calling two

of appellant’s ex-girlfriends to testify during the punishment phase. Appellant and his

counsel informed the court appellant did not want to be in the courtroom during the

punishment phase. The court confirmed on the record appellant’s wish to be absent

from the courtroom during the testimony of “all of” the punishment witnesses.2

Appellant was escorted from the courtroom during testimony but was present when the

court announced his punishment.


        One week after trial, appellant filed a motion for new trial, citing as grounds the

“verdict in this cause is contrary to the law and the evidence.” A little over a month later,

appellant filed a supplement to that motion with appellant’s father’s affidavit and

appellant’s affidavit appended.           Appellant’s father appeared to complain of some

prosecutorial misconduct. Appellant’s affidavit asserted his counsel misunderstood him

at trial and while he did not want to be present during witness testimony, he did want to

testify at his punishment hearing. Appellant said he expressed this wish to counsel


        2
           The court questioned appellant about his choice. Appellant said he did not want to be present
because, among other reasons, the prosecutor had accused him of glaring at his ex-girlfriends during the
guilt-innocence phase of trial. He told the court he did not want the prosecutor to say he was “coercing a
witness, threatening a witness” so he did not want to be present. The court cautioned appellant to visit
further with his attorney and make certain of his decision. Appellant and his attorney conferred privately
and returned, telling the court appellant did not wish to be present for any of the punishment testimony.

                                                    2
“[a]fter [his] trial was complete back at the jail . . . .” The State objected in writing to

appellant’s supplemental motion for new trial when it was filed with the trial court. The

motions were overruled by operation of law.


                                         Analysis


       Through one appellate issue, appellant contends the trial court erred in denying

his supplemental motion for new trial. The State argues appellant’s supplemental

motion for new trial was an amended motion and was untimely because it was filed 42

days after appellant’s sentence was imposed. We agree.


       The right to move for a new trial in a criminal case is purely statutory. State v.

Lewis, 151 S.W.3d 213, 217 (Tex. App.—Tyler 2004, pet. ref'd) (citing Drew v. State,

743 S.W.2d 207, 223 (Tex. Crim. App. 1987)). Rule 21 of the Texas Rules of Appellate

Procedure governs motions for new trial. TEX. R. APP. P. 21. The defendant must file a

motion “no later than thirty days after the date when the trial court imposes or suspends

sentence in open court.”     TEX. R. APP. P. 21.4(a).      A defendant's motion may be

amended without leave any time within the thirty-day limit so long as the trial court has

not already ruled on the motion. TEX. R. APP. P. 21.4(b). Amendments outside of the

thirty-day time limit, even with leave of court, are barred so long as the State properly

objects. State v. Zalman, 400 S.W.3d 590, 593 (Tex. Crim. App. 2013). The trial court

has limited jurisdiction when exercising its particular authority to rule on motions for new

trial. Lewis, 151 S.W.3d at 219. A late amended motion for new trial fails to vest the trial

court with jurisdiction over the issues included in the amended motion. Id.




                                             3
        Here, appellant timely filed his original motion for new trial. But, his supplemental

motion was filed outside the thirty-day time period and the State properly objected to the

trial court’s consideration of it. Also, the supplemental motion contained wholly new

grounds and thus was an amendment, not a supplement, to the original motion. Bailey

v. State, No. 12-06-00128-CR, 2007 Tex. App. LEXIS 3751, at *12 (Tex. App.—Tyler

May 16, 2007, no pet.) (mem. op., not designated for publication). Therefore, we may

not consider appellant’s supplemental motion or the appended affidavits. 3                         Only

appellant’s contention in his original motion for new trial is subject to our review. See

State v. Moore, 225 S.W.3d 556, 570 (Tex. Crim. App. 2007) (finding if the State objects

to an untimely amended motion for new trial, the trial court and appellate court should

consider only the original motion and any timely amendment); Senegal v. State, No. 14-

01-00079-CR, 2002 Tex. App. LEXIS 2318, at *3-4 (Tex. App.—Houston [14th Dist.]

March 28, 2002, no pet.) (mem. op., not designated for publication) (similar finding).


        A trial judge's decision to grant a motion for new trial is reviewed only for an

abuse of discretion. Zalman, 400 S.W.3d at 593. We do not substitute our judgment for

that of the trial court; rather, we decide whether the trial court's decision was arbitrary or

unreasonable. Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006). A trial

court abuses its discretion in denying a motion for new trial only when no reasonable

view of the record could support the trial court's ruling. Id. Allegations that a verdict was

against the law and the evidence raise “a sufficiency challenge and only a sufficiency

challenge.” Zalman, 400 S.W.3d at 594 (emphasis in original). The standard for


        3
         Filing affidavits in support of a motion for new trial more than thirty days after sentencing is
considered an untimely attempt to amend the motion. Klapesky v. State, 256 S.W.3d 442, 455 (Tex.
App.—San Antonio 2008, pet. ref'd).

                                                   4
reviewing a legal sufficiency challenge is whether any rational trier of fact could have

found the essential elements of the offense beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 320, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). The

evidence is examined in the light most favorable to the verdict. Id.


       Appellant was charged with the felony offense of aggravated assault with a

deadly weapon against a family member.           “Family” includes individuals related by

consanguinity or affinity, including parents. TEX. FAM. CODE ANN. § 71.003 (West 2013).

Section 22.02 of the penal code provides that a person commits aggravated assault if

the person commits assault as defined in section 22.01 and the person either causes

serious bodily injury to another or uses or exhibits a deadly weapon during the assault.

TEX. PENAL CODE ANN. § 22.02(a). Section 22.01(a) provides a person commits assault

if the person intentionally or knowingly threatens another with imminent bodily injury.

TEX. PENAL CODE ANN. § 22.01(a). Assault by threat requires only fear of imminent

bodily injury and does not require a finding of actual bodily injury. Dolkart v. State, 197

S.W.3d 887, 893 (Tex. App.—Dallas 2006, pet. ref’d). A culpable mental state is

generally proved by circumstantial evidence.      Krause v. State, 243 S.W.3d 95, 111

(Tex. App.—Houston [1st Dist.] 2007, pet. ref'd). A jury may infer intent or knowledge

from any facts which tend to prove its existence, including the acts, words, conduct of

the accused, and the method of committing the crime. Hart v. State, 89 S.W.3d 61, 64

(Tex. Crim. App. 2002).


       To support its allegations against appellant, the State presented the testimony of

four witnesses: appellant’s father, a police officer, a witness to the incident, and the



                                             5
chief dispatcher at Dalhart county jail.4 Appellant’s father agreed his relationship with

appellant was a “rocky relationship” and appellant had a “really bad temper.” On the day

of the incident, he agreed he and appellant had a “very loud argument” over some

equipment and an unpaid debt appellant owed him. Appellant “took off in his truck

coming at me, you know, backwards and rammed me up in a pile of junk.” Appellant’s

father jumped in the bed of the truck to avoid being crushed and when appellant

accelerated forward, he rolled off the truck and into the street. He admitted he told

police appellant tried to kill him and that he included that in his written statement. From

this evidence, the trial court could have found appellant’s father was a family member

as defined in the Family Code, appellant used his truck in a manner that placed the

father in fear of imminent bodily injury, and that appellant had the requisite culpable

mental state at the time.


        A responding police officer testified when he arrived at the scene, he asked the

father what had happened. He responded, “my son, Shane, just tried to run me over.”

The officer observed tire tracks that appeared to confirm the events. He also agreed

that a truck backing up into a person could be a deadly weapon because it is an

instrument that can cause serious bodily injury. The trial court could have found this

evidence sufficient to show the father was placed in fear of imminent bodily injury when

his son backed into him with a truck and the truck was used as a deadly weapon by the

manner of its use.




        4
          The Chief Dispatcher at Dalhart county jail testified to letters from appellant asking appellant’s
father not to prosecute and asking for his father to locate the witness and convince him not to testify in
appellant’s trial.

                                                     6
       The testimony of a witness who saw the events provided additional proof of

appellant’s culpable mental state as well as proof that appellant used the truck as a

deadly weapon to threaten the father with imminent bodily injury. The witness testified

he heard the men arguing. As he watched, “[p]retty soon when the one guy run [sic]

and jumped in the pickup, he throwed [sic] the pickup in gear and backed over this other

man. The man fell over the pickup like that and backed him into a bunch of junk.” The

driver was “spinning the wheels of the truck.” The man “finally fell off the truck about the

middle of the street there.” The witness went over to the man he saw fall to “see if he

was still alive.”


       Viewing the evidence in the light most favorable to the verdict, the trial court

could have found each of the essential elements of aggravated assault with a deadly

weapon against a family member as charged in the indictment. Accordingly, the trial

court did not abuse its discretion by allowing appellant’s original motion for new trial to

be overruled by operation of law.


       We overrule appellant’s sole issue and affirm the judgment of the trial court.




                                                 James T. Campbell
                                                     Justice

Do not publish.




                                             7
