                                   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,


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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
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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




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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.




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