Opinion issued N ovember 26, 2019

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 18
- 00806
- CR

——————————— GUOZHONG GAO , Appella nt

V. THE STATE OF TEXAS , Appell e e
On Appeal from the County Cou rt at Law No . 3

Fort Bend County, T exas Trial Court Ca se No. 16
- CCR
- 187789

MEMORANDUM OPINION Gu ozhong Gao was convicted by a jury of assault causing bodily injury family violence, a clas s A misdemeanor

. T EX
. P ENA L C ODE § 22.01 (assault) , § 2 2.01(b) ( misdemeanor). The trial court assesse d punish ment at 21 days in jail to b e served on weekends and a $3,000 fine. On appeal he complains that the jury should have2

been instructed on self

- defense , and therefore he sho u ld have a new trial. Gao did

n ot 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 “ S tephanie ” Zhang

. O n the evening of May 12, 2 016, police responded to the coup l e ’ s house
aft e r 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 h er way so she co u l d not leave the house

. With no response to knocking on the door and hearing fighting inside, the police broke a master bedroom window , separated S t ephanie and
G ao , and arrested Gao. At trial, the jury he ard from two responding officers, Stephanie, and
S t ephanie ’ s friend Jiaq i Yang. A. Dong Yan “ Stephanie ” Yang ’ s Testimony S t ephan i e testified that she met Gao on a Chinese dating website. They
communi cated for se veral months before meeting in person in Shanghai in February
2014. I n July 201 5 , Stephanie visited the United States

. She be l i eved that they would travel the United States, but once she arrived, Gao told her he was too busy to travel

. He physically abused her dur ing her trip, and s he returned to C h ina upon the3

expiration of her visitor visa

. She rarely spoke t o Gao wh en back in China, but he
continued to sen d her verbally ab u sive messages . In December 2015, Stephanie returned to Houston to attend school

. When she arrived, Gao messaged her asking if she ne e d ed a ride from the airport or help finding

an apartment near the University of Houston. Stephanie decided to give Gao a
second c hance. She moved into his house and eventually agreed to get a marriage
licens e. She believed that the license would a l low them a probationary period of three months before marriage. When they went to the courthouse to get the license, Gao told th e clerks that th ey wanted to get married immediately. Stephanie agreed to marry him, but if he abused her ag a i n, she told him she would divorce him and

con template suicide.
In Feb ruary 2016, Gao beg an abusing Stephanie again

. Gao choked S t ephanie during a n argument about moving to Louisiana

. The next day, S t ephanie called Jiaqi Yang , Gao ’s former cow orker, who m she had met on a previous visit. Yang and her husband visited Stephanie and observed bruises on her arm.
O n the evening of May 12, 2016 , Stephanie made Gao pancakes for dinner

. W h en the two wer e 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 actu a l ly been mar ried three times previously i nstead of only one time

. W h en she asked about his past, Gao became angry , pulled her off the couch , and4

threw her on the ground. Her he ad hi t the carpet , and she was in pain. Gao kicked
S t ephanie in the le g s and hips multiple t imes, and she had bruises on her upper right thigh. Stephanie tried to go to the master bedroo m, b ut Gao followed her , pulled her from the bed , and dragged her on the carpet back to the living room, burning her back on the c arpet

. Stephanie went back to the master bedroom , messaged Ya ng to call the police

. She did not call 91 1 because in the past, Gao gra bbed her phone when
he heard her talking on it , and she did not want to upset him.
S t ephanie g ot her purse, turned her cell phone to record, put it i n the purse, and atte m p ted to lea ve the house. Gao stopped Stephanie from le aving when she got to a hallw ay. 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 lowe r body and put his f oot o n her face. He tried to grab her purse, but the handle broke off. He yelled obscenities

a t Stephanie and s aid 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

t he door. S h e grabbed he r pur se and went toward the door, b ut Gao stopped her in the door way of the master bedroom , preventing her from leaving . He held her arms and pushed her back. S t ephanie was c r ying and shouting. The police broke a window
in the master bedroom, separated Gao from Stephanie , and escorted them out of the house.5

S t ephanie refused to let the officer take pictures of h er bruises

. She did not want the pict ures to be taken b ec ause , at that time, she did not want Gao to go to jail. The police arrested Gao that night, and Stephanie continued to have a re lationship with him

. S t ephani e testified that she had attack ed Gao with a water bottle, a stick, her fists, and an object i n her hands several times, but she maintained that al l of th e se attacks occurred after May 12, 2016 . She tes tified that in July 2016 , Gao fa lsely accused her of trying to murder him. Around that time, she had an abortion, and in September 2016 , she move d o ut of the house. They divorced in March 2018.
B. Deputy W. Col eman ’ s Test imony D eputy W . C o leman of t he Fort Bend County Sheriff ’ s Off ice testified that he

was the first office r to arrive on the scene. Upon arriving, he knoc ked on t h e door , but nobody answered. He knocked with increasing force using his fists, baton, a nd
flashl ight , a nd he rang the doorbell for fifteen minutes. Once anothe r d eputy arrived , they walked down the side of the house to the back yard. Wh i l e on the side of the house, Deputy C o leman heard a woman crying and a person getting hit by another
p erson ’ s fists. They k nocked o n the b ack door. They could not see anyone but t hey
heard an assault a nd a woman c rying. They tried to open the back door but then decided to break the window to the master bedroom.6

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

was sw eating and breathing heavily

. St e ph anie was i n the master bedroom closet, crying profusely

. Based on the sounds he heard when trying to ente r the house, Deputy C o leman believed tha t a woman was being a ssaulted

. He detained Gao , and th e ot her deputy assisted Stepha n ie

. C. Deputy W. Schoppe ’ s Testimony D e puty W. S choppe testified that he also responded to the domestic violence
call. As he approached the back of the house, he heard screaming and yel lin g and a woman in distress

. Deputy Schopp e fo und Stephanie on her kne es in the master bed r oo m crying hysteri cally

. He took Stephanie to his patrol ca r . While she calm ed down, Deputy Schoppe spoke with Gao. Gao initially told Deputy S c hoppe that he and Stephanie had an argument about his previous rel ationships. He said ther e was a l o t 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 wher e she was going. Gao eventually admitted that there may have been some bodil y contac t between him and Stephanie. He also to ld the deputy that he was sitting on the couch when they were trying to enter the house, but th rough investigation , De puty Schoppe found that to be false. Gao did not tell Deputy Schop p e th a t h e had a ny injurie s. Deputy Schoppe testified7

that he had pr obab le cause to arrest Gao for unlawful restraint and assault family violence

. Gao was arrested that evening. Deputy Schoppe then returned to speak with Stephanie. Step h anie would not allow law enf

orcement to take p i ctures of her injuries, but he saw bruises o n her body. Sh e claimed they were f ro m a previous incident. The jury heard an audio recording of Deputy Schoppe ’ s discussions with both Gao and Stephanie.
D. Jiaqi Yang ’ s Testimony J iaqi Yang als o t estif

ied. She said that i n February 2016, Stephanie told her that she was being abus ed. S t ephanie 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 tim e s and showed Yang photos of her injuries from
her husb and

. On May 12, 2016, Stephanie contacted Yang via a messaging application on her cell phone to request that Yang call t he police. Yang was unaware of the specific reason why Stephan i e needed t he polic e, but based on the past, she feared something may have be en happening to her. Yang called the police

. About thirt y minutes later, the police called Yang to request that she contact Stephanie. The di spatcher told Yang that the poli ce were not getti ng a res ponse and were unable to make it inside. On the return call, police requested that Yang tell S t ephanie to scream so that the police knew they were at the right house. Dispatch followed up wi th Yang

s h ortly after and informed her that they w e re able to get inside the house.8

S t ephanie later told Yang about what happened in May 2016 and her account

was consistent with the text message s she had sent requesting the police be called.
Afte r that incident , Yang was concerned for Stephanie ’ s safety. S h e tes tified t hat she knew of several times where Gao became abus i ve toward Stephanie but that she never called the police. The jury found Gao guilty of assault causing bodily injury fa m ily violence , and the trial court sen tenced him to 21 days in jail to be s erved on weekends and a $ 3 ,000 fine. This appeal followed.
Th e Jury Charge Gao ’ s sole issue on appeal is that the jury charge was erroneous and harmful

. H e complains that the jur y charge should have included an instructi on on self

defense , and the omissi on wa s e gregiously harm ful.
Gao neither requested a self

- defen se instruction nor o bjected to the omission
of the instruction from the charge. He argues that the omission c omprises e gregious harm as s et out in Alman za v. State , 686 S.W.2d 157 , 171 (Tex. Cr im. App. 1984), and therefore requires reversal

. When a party c ontends that the trial court erred in its charge to the jury, we must determine whether the charge was errone ous, and i f so, whether the error was harmful un der the appropriate harm

- analysis st andard. Celis

v. State , 416 S.W.3d 419 , 423 & n. 3. (Tex. Crim. App. 2013).9

A. The j ury charge was not erroneous. The trial judge is “ ultimately responsible for the accuracy o f the ju r y charge and ac companying instructi ons. ” Delgado v. State , 235 S.W.3d 244, 249 (Tex . Crim.
A pp. 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 writ t en charge di stinctly setting forth the law applicable to the case. ” T EX
. C ODE C RI M
. P ROC
. ar t. 36.14. The trial judge has the duty to in struct the jury on the law applicable

to the case even if def

e nse counsel fails to object to inclusions or excl usions i n the charge. T a ylor v. State , 332 S.W.3d 483, 48 6 (Tex. Crim. App. 2011). Self

- d efense is a defensive issue

. G amino v. State , 537 S.W.3 d 50 7, 511 (Tex. Crim. App. 2017). A defensive issue is n ot “ applicable to the c ase ” unless the
defendant timel y reques t s the issue or objects to the omission of the issue in the jury charge. B ennet t v. S t

ate , 235 S.W.3d 241, 243 (Tex. Crim. App. 2007) ( “ D efensive instructions must be requested in order to be considered applic able law of the case requiring submission to the jury. ” ) ; s ee Posey v. State , 966 S.W.2d 57, 6 3 (Tex. Crim. App. 1998)

. D efensi ve issues are treat ed dif ferently because they involve
st rategic decisions and tactics gen e rally left to the defense lawyer and the client. Delgado v

. State , 235 S.W. 3d 244, 2 49 (Tex. Crim. App. 2007) ; Posey , 966 S.W.2d
at 62

. A defendant may decide it would be bett er trial strate gy to for go a possible instructi on that contradicts the defendant ’ s theory of the case. Posey , 966 S.W.2d at10

63. Thus, even when it is raised by the evid ence, the tr ial court has no duty to instruct the jury on an unrequested defensive issue. Posey , 966 S. W.2d at 62; Jackson v.
State , 28 8 S.W.3d 60, 63 (Tex. App.

— Houston [1st Dist.] 2009, pet. ref ’ d). Gao did not request a self

- defense instruc tion , a n d he did not object to the jury charge. The trial court has no duty under ar ticle 36.14 to sua sponte inst r uct the jury on unrequested defe nsive issues. Posey , 966 S.W.2d at 62

– 63 (a defe nsive issue is not applicable to the case under article 36.14 un less a d efendant 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
- defens e. E ve n assuming Gao had requested a self

- defense instruction, the trial court

w ould not have erred in denying it. A defendant has the burden o f producing some evidence to support a c laim of self

- defense. Zu liani v. State , 97 S.W.3d 589, 594 (Tex. Crim. App. 200 3) ; Cleveland v. State , 177 S.W.3d 374, 38 0, (Tex. App.

— Houston [1st Dist. ] 2005, pet. ref ’ d). Once the d efendant produces that evidence , the State the n bears the burden of persuasion to disprove the raised defense. Zuliani , 97 S.W.3d at 594

. Self

- defense is a “ c onfessio n and av oidance ” defense. See Gamino , 537 S.W.3d at 511 ; Sh aw v. State , 243 S.W.3d 647, 65 9 (Tex. Crim. App. 2007)

. Gao wa s not ent itled to a self

- defense instruction unless he admitted to the conduct.
Van Brackle v. State , 179 S.W.3d 708, 715 (Tex. App.

— Au stin 200 5, no pet.) (citing11

Y o ung v. State , 991 S.W.2d 835, 83 8 (Tex. Crim. App. 1999) ) ; s ee Gamino , 537 S.W.3d at 512 ( ex plaining that to receive a self

- defense instruction , defendant must admit to the alleged conduct but does not necessarily need to admit t o e very element of the charged offense )

. A defendant is not entitled to a self

- defense instruction if he claims, throug h either his testimony or the testi mony of others , that he “ did not perform the assaultive acts alleged , or that he did not have the requ i site cu lpable mental state, o r both. ” V

an Brackle , 179 S .W.3d at 715

. Gao was charged with in tentionally, knowingly, o r recklessly causing bodily injury to Stephanie by grabbing her and shoving her head into the ground with his hand and by kicking her wit h his leg. T he record does not support that Gao sufficie ntly admitted to committing the alleged conduct. 1 Gao did not t estif y, nor did

a ny facts raised by the Stat e ’ s witnesses demonstrate his admission of the assaul t. See L avern 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 Va nBrackle , 179 S.W.3d at 712 ( “ Defensiv e issues may be raised

1 Gao argues that his cou nsel argued self

- d ef ense in closing argument. Argum ent of counsel is not evidence admitting the underlying co nduct. See Motilla v. State , 38 S.W.3d 821, 824 (Tex. A pp.

— Houston [14th Dist.] 2001 ) (acknowledg ing that closing arguments are not evidence), rev ’ d on ot h er 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 argume nt of counsel is not evidence. ” )

.12

by the testimony of any witnesses, even those ca lled by the State. ” ). But whe n, as here, a defendant does not testify, there still must be som e evidence of the
defendant ’ s subjective beli eve that force was immedia tely necessary to prot ect himself. See T EX
. P ENAL C ODE § 9.3 1 ( “ A person is justified in us ing force against another when a nd to the degree the actor reasonably believes the force is immediately necessary to protect the actor agai nst the other ’s use or attempted use
of unlawful force. ” ); see also Smith v. State , 67 6 S.W.2d 584, 585 (Tex. Crim. A pp. 1984 ) ( “ [T] o justify the sub mission of a charge to the jury on the issue of self

defense , there must be some evidence in th e record to show th at the defendant was in some apprehensio n or fear of being the r ecipient of the unlawful use of fo rce from the compl ainant. ” ). The record doe s not support that on the night in question, Gao was in fear of and responding to unlawful force from Step hanie. D eputy S c h op pe testified that on the night of the altercation, Gao denied fighti ng with Stephanie and later adm itted there may have been some p hysical contact. The jury also heard a recording of this conversation. Both officers testified that as the y approac hed the house, they could hear an al terc ation and a woman in distress. Deputy Coleman testified that b ased on the sounds he heard when trying to ente r the house, he believed tha t a woman was being a ssaulted

. While Stephanie testified that she had hit Gao d uring their relationship , she stat ed tha t sh e did so in incidents that occurre d after May 2016

.13

T here was no evidence that she did so on the night in question such that Gao needed to use force against her to def end himself. See T EX
. P ENAL C ODE § 9 .31

. Sinc e Gao
was not ent itled to a self

- defense instruction , even if he had brought t he defense to the cour t ’ s atten tion, the trial court would not have erred by omitting th e instruction from the jury charge. 2
We overrule Gao ’ s sole issue.

Conclusion W e affi rm the judgment of the trial co urt.

Peter Kelly Justice

2 Final ly , we no te that the jur y found Gao guilty of assault caus ing bodily injury family violence. T h e jury charge defined “ family violence ” as “ an act by a member of a f amily or househo ld aga inst another member of the family or household that is inte nded to res ult in ph ysical harm, bodily injury, assault, or sexual as sault or that is a threat tha t reasonably places the member in fear of imm in ent physical harm, bodily injury, as sault, or sexual assault, but does not incl ude defensive measures to protec t ones elf. ” By finding him guilty, the jury implicitly dec ided that Gao ’ s actions were not defensive measures to protect himself.14

Pa nel consists of Justices Kelly, H ightower, and Countiss. Do not p ublish. T EX
. R. A PP
. P. 47.2(b).