
                                          NO. 07-08-0426-CR

                                       IN THE COURT OF APPEALS

                                  FOR THE SEVENTH DISTRICT OF TEXAS

                                             AT AMARILLO

                                               PANEL C

                                            AUGUST 6, 2010




                                          JEREMY D. CHANEY,


                                                Appellant
                                                  v.


                                         THE STATE OF TEXAS,


                                                Appellee
                                    _____________________________

                           FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

                       NO. 2008-419,247; HONORABLE CECIL G. PURYEAR, PRESIDING



                                          Memorandum Opinion



Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
      Jeremy D. Chaney was convicted of assault against  a  family  member  (his  former  wife).   He
contends the trial court committed error in failing to give him an  instruction  on  the  affirmative
defense of protection of life or health.  We affirm the judgment.
      Background
      On January 25, 2008, appellant and his former wife, Betty, went to pick up  her  daughter  from
her place of employment.  The daughter refused to get into the car when she observed  that  appellant
was with her mother.  Appellant and Betty left but became engaged in an  argument  with  each  other.
This resulted in Betty exiting the car at an intersection and crossing  multiple  lanes  of  traffic.
Appellant gave chase in the vehicle, met Betty in a nearby parking lot, grabbed her by her  hair  and
pulled her back into the car.  This was witnessed by various people who  attempted  to  come  to  her
aid.  One heard Betty say that appellant was going to kill her.
      After forcing Betty into the car, appellant drove away.  However, he was soon  stopped  by  the
police.  One officer confronted appellant who simply indicated that he was  driving  his  wife  home.
This same officer also questioned Betty and noticed that she had red marks on the inside of her  left
bicep and clumps of her hair in her hand.    At trial, appellant  testified  that  Betty  was  drunk,
initially attempted to exit the vehicle while it was moving, eventually left it while stopped  at  an
intersection, and ran into the traffic.  He also asserted that he gave chase to protect her.
      Instruction
      As previously mentioned, appellant believed that he  was  entitled  to  the  submission  of  an
instruction informing the jury that a person is justified in using force  other  than  deadly  force,
against another when and to the degree he reasonably believes the force is immediately  necessary  to
prevent the other from committing suicide or inflicting  serious  bodily  injury  to  himself.   Tex.
Penal Code Ann. §9.34(a) (Vernon  2003).  It was denied him, however.  Nonetheless, the  trial  court
did charge the jury on the defense of necessity.  Per the  latter,  the  jurors  were  told  that  an
accused’s conduct is justified when the actor reasonably believes  it  is  immediately  necessary  to
avoid imminent harm and the  desirability  and  urgency  of  avoiding  the  harm  clearly  outweighs,
according to ordinary standards of reasonableness, the  harm  sought  to  be  prevented  by  the  law
proscribing the conduct.  Id. §9.22.
      It is true that a defendant is entitled to a jury instruction  on  every  defense  as  long  as
there is evidence to raise  it.   Granger  v.  State,  3  S.W.3d  36,  38  (Tex.  Crim.  App.  1997).
Furthermore, the source, credibility, or strength of the evidence is immaterial to the  determination
of whether the instruction should be included in the charge.  Hamel v. State,  916  S.W.2d  491,  493
(Tex. Crim. App. 1996).  For purposes of this appeal, we assume  arguendo  that  sufficient  evidence
appeared of record to warrant the submission of the instruction denied appellant.  That  being  done,
the  issue  becomes  whether  the  omission  was  harmful.   And,  because  appellant  requested  the
instruction, the pertinent test for assessing harm is whether the error was calculated to injure  his
rights.  Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985).
      We conclude that the requisite harm was not shown at bar.  This  is  so  for  several  reasons.
First, there is a significant overlap between the defenses of necessity and  protection  of  life  or
health.  Kenny v. State, 292 S.W.3d 89, 101 (Tex. App.–Houston [14th Dist.] 2007, pet. ref’d).   Both
focus upon the need to exert force in aid  of  another.   Furthermore,  it  is  conceivable  that  an
instruction on necessity may ameliorate any harm posed by the  omitted  instruction.   That  is,  the
former provided the jury with a means  of  finding  appellant’s  conduct  justifiable  if  needed  to
protect Betty from herself, and the same is true of the latter.  So, it is rather  difficult  to  say
that appellant was actually denied the benefits of the defense he pursued.   Of  course,  the  jurors
had to accept his version of events.  Moreover, and unlike  the  defensive  instruction  denied  him,
that of necessity relieved appellant of having to prove that his ex-wife was about to commit  suicide
or suffer serious bodily injury.  Indeed, the instruction submitted  required  no  proof  that  Betty
faced a risk of death or serious bodily injury but only that  there  was  the  presence  of  imminent
harm.  And, one cannot deny that  the  rather  amorphous  concept  “harm”  could  be  interpreted  as
encompassing much more than death or serious bodily injury.
      Second, other than appellant’s own  testimony,  little  to  no  other  evidence  supported  his
proposition that he was acting for the good of Betty.  Rather, those  without  an  obvious  potential
for personal bias spoke of seeing his aggressive behavior and the fear emanating from Betty.  So  too
did one or more describe the rather insulting words used by him to describe Betty at the time.   Such
is not necessarily demeanor exemplified by a person who cares for the well-being of another  to  whom
his actions are directed.
      Third, among the plethora of evidence tendered to the jurors was that illustrating  appellant’s
criminal history.  It encompassed multiple convictions for assaultive  conduct,  some  of  which  was
directed against Betty.  Having  been  convicted  of  assaulting  his  ex-wife  in  the  past  hardly
strengthens the contention that the  physical  force  used  against  her  at  bar  was  for  her  own
protection.
      In sum, appellant was afforded the opportunity to gain freedom by justifying  his  conduct  via
the instruction submitted.  And while the evidence supporting his  claimed  defense  was  weak,  that
negating it was rather strong.  So too did his criminal  history  tend  to  negate  his  credibility.
Thus, we cannot say that appellant was harmed when the

trial court omitted the instruction at issue.  Consequently, we  overrule  the  point  of  error  and
affirm the judgment.

                                        Brian Quinn
                                        Chief Justice
Do not publish.
