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 CO URT OF LUBBOCK COUNTY; NO. 2008-419,247; HONORABLE CE CIL G. PURYEAR, PRESIDING

Memorandum Opinion

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. Jeremy D. Chaney was convicted of ass ault against a family member (his former wife). He contends the trial court committed e rror in failing to give him an instruction on the affirmative defense of protection of lif e or health. We affirm the judgment. Background On January 25, 2008, appellant and his forme r 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 mo ther. Appellant and Betty left but became2 engaged in an argument with each other. This resulted in Betty exiting the car at an intersection and crossing multiple lanes of tra ffic. 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, appell ant drove away. However, he was soon stopped by the police. One officer confront ed appellant who simply indicated that he was driving his wife home. This same offi cer also questioned Betty and noticed that she had red marks on the inside of her left bicep and clumps of her ha ir in her hand. At trial, appellant testifi ed 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 assert ed 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, agains t another when and to the degr ee he reasonably believes the force is immediately necessary to pr event the other from committing suicide or inflicting serious bodily injury to himself. T EX

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. §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 r easonably believes it is immediately necessary to avoid imminent harm and the desirability and urgency of avoiding the harm clearly outweighs,3 according to ordinary standards of reasonabl eness, 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 instruct ion 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 in cluded 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 over lap between the defenses of necessity and protection of life or health. Kenny v. State, 292 S.W.3d 89, 101 (Tex. App.–Houston [14 th Dist.] 2007, pet. ref’d). Both focus upon t he need to exert force in aid of another. Furthermore, it is conceivable that an inst ruction 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 defens e 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 pr ove that his ex-wife was about to commit4 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 acti ng 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 de scribe the rather insulting words used by him to describe Betty at t he time. Such is not necessarily demeanor exemplified by a person who cares for the we ll-being of another to whom his actions are directed. Third, among the pl ethora of evidence tendered to the jurors was that illustrating appellant’s criminal history. It encompassed multiple convic tions for assaultive conduct, some of which was directed against Betty. Ha ving been convicted of assaulting his exwife in the past hardly strengt hens 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 s upporting his claimed defense was weak, that negating it was rather strong. So too did his criminal history tend to negate his credibility. Thus, we c annot say that appellant was harmed when the5 trial court omitted the instructi on at issue. Conseq uently, we overrule the point of error and affirm the judgment.

Brian Quinn Chief Justice Do not publish.