Opinion issued November 26, 2019




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                              NO. 01-18-00806-CR
                           ———————————
                        GUOZHONG GAO, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


               On Appeal from the County Court at Law No. 3
                         Fort Bend County, Texas
                   Trial Court Case No. 16-CCR-187789


                         MEMORANDUM OPINION

      Guozhong Gao was convicted by a jury of assault causing bodily injury family

violence, a class A misdemeanor. TEX. PENAL CODE § 22.01 (assault), § 22.01(b)

(misdemeanor). The trial court assessed punishment at 21 days in jail to be served

on weekends and a $3,000 fine. On appeal he complains that the jury should have
been instructed on self-defense, and therefore he should have a new trial. Gao did

not request the self-defense instruction nor did he object to its omission. We hold

that the trial court did not err in omitting this instruction.

                                      Background

       This case involves a fight between Gao and his wife, Dong Yan “Stephanie”

Zhang. On the evening of May 12, 2016, police responded to the couple’s house

after Stephanie messaged a friend to call the police. Gao had kicked and dragged

Stephanie across a room, and when the police arrived, he was blocking her way so

she could not leave the house. With no response to knocking on the door and hearing

fighting inside, the police broke a master bedroom window, separated Stephanie and

Gao, and arrested Gao.

       At trial, the jury heard from two responding officers, Stephanie, and

Stephanie’s friend Jiaqi Yang.

A.     Dong Yan “Stephanie” Yang’s Testimony

       Stephanie testified that she met Gao on a Chinese dating website. They

communicated for several months before meeting in person in Shanghai in February

2014. In July 2015, Stephanie visited the United States. She believed that they would

travel the United States, but once she arrived, Gao told her he was too busy to travel.

He physically abused her during her trip, and she returned to China upon the




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expiration of her visitor visa. She rarely spoke to Gao when back in China, but he

continued to send her verbally abusive messages.

      In December 2015, Stephanie returned to Houston to attend school. When she

arrived, Gao messaged her asking if she needed a ride from the airport or help finding

an apartment near the University of Houston. Stephanie decided to give Gao a

second chance. She moved into his house and eventually agreed to get a marriage

license. She believed that the license would allow them a probationary period of

three months before marriage. When they went to the courthouse to get the license,

Gao told the clerks that they wanted to get married immediately. Stephanie agreed

to marry him, but if he abused her again, she told him she would divorce him and

contemplate suicide.

      In February 2016, Gao began abusing Stephanie again. Gao choked Stephanie

during an argument about moving to Louisiana. The next day, Stephanie called Jiaqi

Yang, Gao’s former coworker, whom she had met on a previous visit. Yang and her

husband visited Stephanie and observed bruises on her arm.

      On the evening of May 12, 2016, Stephanie made Gao pancakes for dinner.

When the two were in their living room, she asked him about items she found in the

house that belonged to other women. She had recently discovered that he had lied to

her and had actually been married three times previously instead of only one time.

When she asked about his past, Gao became angry, pulled her off the couch, and


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threw her on the ground. Her head hit the carpet, and she was in pain. Gao kicked

Stephanie in the legs and hips multiple times, and she had bruises on her upper right

thigh. Stephanie tried to go to the master bedroom, but Gao followed her, pulled her

from the bed, and dragged her on the carpet back to the living room, burning her

back on the carpet. Stephanie went back to the master bedroom, messaged Yang to

call the police. She did not call 911 because in the past, Gao grabbed her phone when

he heard her talking on it, and she did not want to upset him.

      Stephanie got her purse, turned her cell phone to record, put it in the purse,

and attempted to leave the house. Gao stopped Stephanie from leaving when she got

to a hallway. He held her arms, using his body to block her. He pushed her back into

the living room, causing her to fall. He kicked her lower body and put his foot on

her face. He tried to grab her purse, but the handle broke off. He yelled obscenities

at Stephanie and said she never respected him.

      Stephanie escaped to the master bedroom and saw messages from Yang

saying the police were outside. Stephanie then heard someone loudly knocking on

the door. She grabbed her purse and went toward the door, but Gao stopped her in

the doorway of the master bedroom, preventing her from leaving. He held her arms

and pushed her back. Stephanie was crying and shouting. The police broke a window

in the master bedroom, separated Gao from Stephanie, and escorted them out of the

house.


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      Stephanie refused to let the officer take pictures of her bruises. She did not

want the pictures to be taken because, at that time, she did not want Gao to go to jail.

The police arrested Gao that night, and Stephanie continued to have a relationship

with him.

      Stephanie testified that she had attacked Gao with a water bottle, a stick, her

fists, and an object in her hands several times, but she maintained that all of these

attacks occurred after May 12, 2016. She testified that in July 2016, Gao falsely

accused her of trying to murder him. Around that time, she had an abortion, and in

September 2016, she moved out of the house. They divorced in March 2018.

B.    Deputy W. Coleman’s Testimony

      Deputy W. Coleman of the Fort Bend County Sheriff’s Office testified that he

was the first officer to arrive on the scene. Upon arriving, he knocked on the door,

but nobody answered. He knocked with increasing force using his fists, baton, and

flashlight, and he rang the doorbell for fifteen minutes. Once another deputy arrived,

they walked down the side of the house to the backyard. While on the side of the

house, Deputy Coleman heard a woman crying and a person getting hit by another

person’s fists. They knocked on the back door. They could not see anyone but they

heard an assault and a woman crying. They tried to open the back door but then

decided to break the window to the master bedroom.




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      When the window broke, Deputy Coleman could hear a woman crying. Gao

was sweating and breathing heavily. Stephanie was in the master bedroom closet,

crying profusely. Based on the sounds he heard when trying to enter the house,

Deputy Coleman believed that a woman was being assaulted. He detained Gao, and

the other deputy assisted Stephanie.

C.    Deputy W. Schoppe’s Testimony

      Deputy W. Schoppe testified that he also responded to the domestic violence

call. As he approached the back of the house, he heard screaming and yelling and a

woman in distress. Deputy Schoppe found Stephanie on her knees in the master

bedroom crying hysterically. He took Stephanie to his patrol car. While she calmed

down, Deputy Schoppe spoke with Gao.

      Gao initially told Deputy Schoppe that he and Stephanie had an argument

about his previous relationships. He said there was a lot of yelling but no fighting.

Gao told Deputy Schoppe that Stephanie tried to leave the house but he stopped her

because she was his wife and he did not know where she was going. Gao eventually

admitted that there may have been some bodily contact between him and Stephanie.

He also told the deputy that he was sitting on the couch when they were trying to

enter the house, but through investigation, Deputy Schoppe found that to be false.

Gao did not tell Deputy Schoppe that he had any injuries. Deputy Schoppe testified




                                         6
that he had probable cause to arrest Gao for unlawful restraint and assault family

violence. Gao was arrested that evening.

      Deputy Schoppe then returned to speak with Stephanie. Stephanie would not

allow law enforcement to take pictures of her injuries, but he saw bruises on her

body. She claimed they were from a previous incident. The jury heard an audio

recording of Deputy Schoppe’s discussions with both Gao and Stephanie.

D.    Jiaqi Yang’s Testimony

      Jiaqi Yang also testified. She said that in February 2016, Stephanie told her

that she was being abused. Stephanie sent Yang a text message, and Yang responded

by phone and visited Stephanie’s house to check on her. Stephanie confided in Yang

about physical abuse a few more times and showed Yang photos of her injuries from

her husband. On May 12, 2016, Stephanie contacted Yang via a messaging

application on her cell phone to request that Yang call the police. Yang was unaware

of the specific reason why Stephanie needed the police, but based on the past, she

feared something may have been happening to her. Yang called the police. About

thirty minutes later, the police called Yang to request that she contact Stephanie. The

dispatcher told Yang that the police were not getting a response and were unable to

make it inside. On the return call, police requested that Yang tell Stephanie to scream

so that the police knew they were at the right house. Dispatch followed up with Yang

shortly after and informed her that they were able to get inside the house.


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      Stephanie later told Yang about what happened in May 2016 and her account

was consistent with the text messages she had sent requesting the police be called.

After that incident, Yang was concerned for Stephanie’s safety. She testified that she

knew of several times where Gao became abusive toward Stephanie but that she

never called the police.

      The jury found Gao guilty of assault causing bodily injury family violence,

and the trial court sentenced him to 21 days in jail to be served on weekends and a

$3,000 fine. This appeal followed.

                                  The Jury Charge

      Gao’s sole issue on appeal is that the jury charge was erroneous and harmful.

He complains that the jury charge should have included an instruction on self-

defense, and the omission was egregiously harmful.

      Gao neither requested a self-defense instruction nor objected to the omission

of the instruction from the charge. He argues that the omission comprises egregious

harm as set out in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984),

and therefore requires reversal. When a party contends that the trial court erred in its

charge to the jury, we must determine whether the charge was erroneous, and if so,

whether the error was harmful under the appropriate harm-analysis standard. Celis

v. State, 416 S.W.3d 419, 423 & n.3. (Tex. Crim. App. 2013).




                                           8
A.    The jury charge was not erroneous.

      The trial judge is “ultimately responsible for the accuracy of the jury charge

and accompanying instructions.” Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim.

App. 2007). Article 36.14 states: “[T]he judge shall, before the argument begins,

deliver to the jury, except in pleas of guilty, where a jury has been waived, a written

charge distinctly setting forth the law applicable to the case.” TEX. CODE CRIM.

PROC. art. 36.14. The trial judge has the duty to instruct the jury on the law applicable

to the case even if defense counsel fails to object to inclusions or exclusions in the

charge. Taylor v. State, 332 S.W.3d 483, 486 (Tex. Crim. App. 2011).

      Self-defense is a defensive issue. Gamino v. State, 537 S.W.3d 507, 511 (Tex.

Crim. App. 2017). A defensive issue is not “applicable to the case” unless the

defendant timely requests the issue or objects to the omission of the issue in the jury

charge. Bennett v. State, 235 S.W.3d 241, 243 (Tex. Crim. App. 2007) (“Defensive

instructions must be requested in order to be considered applicable law of the case

requiring submission to the jury.”); see Posey v. State, 966 S.W.2d 57, 63 (Tex.

Crim. App. 1998). Defensive issues are treated differently because they involve

strategic decisions and tactics generally left to the defense lawyer and the client.

Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007); Posey, 966 S.W.2d

at 62. A defendant may decide it would be better trial strategy to forgo a possible

instruction that contradicts the defendant’s theory of the case. Posey, 966 S.W.2d at


                                           9
63. Thus, even when it is raised by the evidence, the trial court has no duty to instruct

the jury on an unrequested defensive issue. Posey, 966 S.W.2d at 62; Jackson v.

State, 288 S.W.3d 60, 63 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d).

      Gao did not request a self-defense instruction, and he did not object to the jury

charge. The trial court has no duty under article 36.14 to sua sponte instruct the jury

on unrequested defensive issues. Posey, 966 S.W.2d at 62–63 (a defensive issue is

not applicable to the case under article 36.14 unless a defendant requests the issue

or objects to the omission of the issue from the jury charge). Consequently, there is

no error in the charge and the egregious harm standard does not apply.

B.    Gao did not meet his burden to produce evidence of self-defense.

      Even assuming Gao had requested a self-defense instruction, the trial court

would not have erred in denying it. A defendant has the burden of producing some

evidence to support a claim of self-defense. Zuliani v. State, 97 S.W.3d 589, 594

(Tex. Crim. App. 2003); Cleveland v. State, 177 S.W.3d 374, 380, (Tex. App.—

Houston [1st Dist.] 2005, pet. ref’d). Once the defendant produces that evidence, the

State then bears the burden of persuasion to disprove the raised defense. Zuliani, 97

S.W.3d at 594. Self-defense is a “confession and avoidance” defense. See Gamino,

537 S.W.3d at 511; Shaw v. State, 243 S.W.3d 647, 659 (Tex. Crim. App. 2007).

Gao was not entitled to a self-defense instruction unless he admitted to the conduct.

VanBrackle v. State, 179 S.W.3d 708, 715 (Tex. App.—Austin 2005, no pet.) (citing


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Young v. State, 991 S.W.2d 835, 838 (Tex. Crim. App. 1999)); see Gamino, 537

S.W.3d at 512 (explaining that to receive a self-defense instruction, defendant must

admit to the alleged conduct but does not necessarily need to admit to every element

of the charged offense). A defendant is not entitled to a self-defense instruction if he

claims, through either his testimony or the testimony of others, that he “did not

perform the assaultive acts alleged, or that he did not have the requisite culpable

mental state, or both.” VanBrackle, 179 S.W.3d at 715.

      Gao was charged with intentionally, knowingly, or recklessly causing bodily

injury to Stephanie by grabbing her and shoving her head into the ground with his

hand and by kicking her with his leg. The record does not support that Gao

sufficiently admitted to committing the alleged conduct.1 Gao did not testify, nor did

any facts raised by the State’s witnesses demonstrate his admission of the assault.

See Lavern v. State, 48 S.W.3d 356, 360 (Tex. App.—Houston [14th Dist.] 2001,

pet. ref’d) (en banc) (“While a non-testifying defendant may be entitled to a charge

on self-defense, it is rare for the defense to be raised when the defendant fails to

testify.”); see also VanBrackle, 179 S.W.3d at 712 (“Defensive issues may be raised



1
      Gao argues that his counsel argued self-defense in closing argument. Argument of
      counsel is not evidence admitting the underlying conduct. See Motilla v. State, 38
      S.W.3d 821, 824 (Tex. App.—Houston [14th Dist.] 2001 ) (acknowledging that
      closing arguments are not evidence), rev’d on other grounds, 78 S.W.3d 352 (Tex.
      Crim. App. 2002); Mata v. State, 1 S.W.3d 226, 228 (Tex. App.—Corpus Christi
      1999, no pet.) (“[I]t is axiomatic that argument of counsel is not evidence.”).
                                          11
by the testimony of any witnesses, even those called by the State.”). But when, as

here, a defendant does not testify, there still must be some evidence of the

defendant’s subjective believe that force was immediately necessary to protect

himself. See TEX. PENAL CODE § 9.31 (“A person is justified in using force against

another when and to the degree the actor reasonably believes the force is

immediately necessary to protect the actor against the other’s use or attempted use

of unlawful force.”); see also Smith v. State, 676 S.W.2d 584, 585 (Tex. Crim. App.

1984) (“[T]o justify the submission of a charge to the jury on the issue of self-

defense, there must be some evidence in the record to show that the defendant was

in some apprehension or fear of being the recipient of the unlawful use of force from

the complainant.”).

      The record does not support that on the night in question, Gao was in fear of

and responding to unlawful force from Stephanie. Deputy Schoppe testified that on

the night of the altercation, Gao denied fighting with Stephanie and later admitted

there may have been some physical contact. The jury also heard a recording of this

conversation. Both officers testified that as they approached the house, they could

hear an altercation and a woman in distress. Deputy Coleman testified that based on

the sounds he heard when trying to enter the house, he believed that a woman was

being assaulted. While Stephanie testified that she had hit Gao during their

relationship, she stated that she did so in incidents that occurred after May 2016.


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There was no evidence that she did so on the night in question such that Gao needed

to use force against her to defend himself. See TEX. PENAL CODE § 9.31. Since Gao

was not entitled to a self-defense instruction, even if he had brought the defense to

the court’s attention, the trial court would not have erred by omitting the instruction

from the jury charge.2

      We overrule Gao’s sole issue.




                                      Conclusion

      We affirm the judgment of the trial court.




                                                 Peter Kelly
                                                 Justice
2
      Finally, we note that the jury found Gao guilty of assault causing bodily injury
      family violence. The jury charge defined “family violence” as “an act by a member
      of a family or household against another member of the family or household that is
      intended to result in physical harm, bodily injury, assault, or sexual assault or that
      is a threat that reasonably places the member in fear of imminent physical harm,
      bodily injury, assault, or sexual assault, but does not include defensive measures to
      protect oneself.” By finding him guilty, the jury implicitly decided that Gao’s
      actions were not defensive measures to protect himself.
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Panel consists of Justices Kelly, Hightower, and Countiss.

Do not publish. TEX. R. APP. P. 47.2(b).




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