
NO. 07-08-0426-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

DECEMBER 16, 2009

______________________________


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, JUDGE

_______________________________

Abatement and Remand
________________________________


Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
	Following a plea of not guilty, Appellant, Jeremy D. Chaney, was convicted by a jury
of assault on a family member, enhanced.  After Appellant pleaded true to the
enhancement allegation, the punishment phase proceeded and the jury sentenced him to
eleven years confinement.  In presenting this appeal, counsel has filed an Anders (1) brief in
support of a motion to withdraw.  For the reasons expressed herein, we abate and remand
this cause to the trial court for appointment of new counsel. 
 When faced with an Anders brief, or a later filed pro se response, an appellate court
has two choices: (1) it may determine that the appeal is wholly frivolous and issue an
opinion explaining that it has reviewed the record and finds no reversible error, or (2) it may
determine that arguable grounds for appeal exist and remand the cause to the trial court
so that new counsel can be appointed to brief the issues.  Garner v. State, ___ S.W.3d ___
No. PD-0904-07, 2009 WL 4640565, at *3 (Tex.Crim.App. Dec. 9, 2009).  
	In this cause, Appellant testified to the facts and circumstances surrounding the
allegations in the indictment.  It is apparent that Appellant's trial strategy was not to deny
the commission of the offense, but instead to justify his actions pursuant to either section
9.22 (necessity) or 9.34 (protection of life or death) of the Texas Penal Code.  While the
trial court did allow an instruction under section 9.22, it denied a tendered instruction under
9.34.  Finding that an arguable issue exists as to whether the trial court erred in denying
the requested instruction under section 9.34 of the Texas Penal Code, pertaining to the
use of force to protect the complainant from inflicting serious bodily injury on herself, we
grant Appellant's counsel's motion to withdraw, abate this proceeding, and remand this
cause to the trial court for appointment of new counsel.  See Bledsoe v. State, 178 S.W.3d
824, 827  (Tex.Crim.App. 2005); Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App.
1991).  
	Accordingly, we direct the trial court to appoint new counsel to represent Appellant
on appeal by January 8, 2010.  The trial court shall furnish the name, address, telephone
number, and state bar number of new counsel by its order appointing new counsel to be
included in a supplemental clerk's record which shall be filed with the Clerk of this Court
by January 22, 2010.  Appellant's brief shall be due forty-five days from the date of the trial
court's appointment of new counsel.  All other appellate deadlines shall be in accordance
with the Texas Rules of Appellate Procedure.
	Appellant's pro se Motion to Deny Withdrawal of Attorney of Record is denied. 
Appellant's pro se Motion to Request Writ of Habeas Ad Testificandum is rendered moot
by this Court's order that new appellate counsel be appointed. 
	It is so ordered.
							Per Curiam
Do not publish.  
 
1. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
