Opinion issued Augus t 10 , 2023

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 22
- 00530
- CR

——————————— EVAN MICHAEL SZARF , Appella nt

V. THE STATE OF TEXAS , Appell e e
On Appea l from the 21st District Court Washingt o n County, T e xas Trial Court Ca se No. 19208

MEMORANDU M OPINION Appellant Evan Michael S zar f was charged in a two

- count indic tment with

ass aulting his g irlfriend. In C ou nt 1, h e was c harged with Family Violence on a Household Member by Impeding Breath o r C i rculatio n with a P revious
C onviction , a second

- degree felon y , and in Co unt 2 , he was charged with Assault2

Family Viol ence of a Family or Household Member w i th a P revi ous C onviction , a third

- degree fe lony

. Appellant pleaded not guilty

. Following a bif u rcated b enc h
trial , t he trial court found Appellant guilty o n both counts and sentenced h im t o ten
years ’ confinement and five years ’ confinement , respectively, in the Ins titutional
Division of the Texas Department of Crimina l Justice

. The se ntences are t o run

concu r r ently. Appellant appeals from his conviction under C ount 1

. 1 In four issues, he
argu es (1) the evidence is insufficient to prove he committed Fa mi ly Violence on a Household Member by Impeding Breath or Cir c ulation , (2) th e evidence is
ins uff i cient to pr o v e he was previously convicted of a family offense ; and (3)

- (4)
the final judgment incorrectly reci te s the degree of the off enses for which he was
convicted under Counts 1 and 2

. We affirm the trial court ’ s judgment as reformed

. B a ckground App e llant Even M i chae l Szarf ( “ Szarf ” ) and his girlfriend Amanda Breitenbach ( “ Amanda ” ) lived to gether at a residence in Wa shington County

. The

1 Appellant does not app e al from his con viction und er Count 2 , but a s noted, he seeks reformation of the f inal judgment to reflect the pro per degree of the offens e s for which he was ch arged

. As it concerns Coun t 2 , A ppellant claims, and the State concedes, that the final judg ment incorrectly states he was convi cted of a s econ d

degree felony and should be corre cted to re fle c t he was co nvict ed of a third

d egree felon y for Assault Family Viol ence of a Family or Hou sehold Member with a P revious C onviction

.3

morning of October 29, 2020 , t hey got into a heated argument a nd a physical
alter cation ensued

. Amanda called 911 crying and c o mplai ning of a “ blo ody nose ”
and “ a few punches and bites on [ her ] bod y . ”
T wo depu ties and a sergeant from the Washingt on County S h eriff ’ s Office

were dispatched to the house

. They kno cked on the front door. After a few
minut es , Szarf emerged from the house and step ped outside. S zarf t old the police
he and Amanda had got ten into a heated argument and he struck Amand a with an open hand. A manda also told the office rs that Szarf h a d hit her and c h oked her
wi th a sock. The officers took photographs of A m anda ’ s injuries and called emergency medical services ( “ EMS ” ) to evalu ate Amanda

. The officers arrested Szarf

. He was charged with the second

- degree felony
of Family Violence on a Household Member by Impedin g Breath or Circul a tion
with a P revious C onvi cti o n under Se ction 22.01(b

- 3) o f the Texas Penal Code ( “ Count 1 ” ) , and the thir d

- degree fe lony of Assault Family Viol ence of a Family or
Household Member with a P revious C onviction under Section 22.01(b) ( “ Co unt
2 ” )

. Both count s were enhan ced in a sepa ra te document with Szarf ’ s prior f elon y DWI co n viction.
T he T rial
Sz arf pleaded no t guilty to the two assau lt charges

. H e wa iv ed his right to a jury trial and the tri al judge co nduct e d a bifurcated bench trial on the two Counts

.4

A. The 91 1 C all The morning of October 29, 2020 , Amanda cal led 911 crying and complai ning of a “ bloody nose ” and “ a few punches and bites on [ her ] bod y . ”
A m anda told the 911 dispatcher she was call ing about a “ domestic violence issue

. ”
S he s ta te d she w as the only one injured and told the di spatche r she was not sure whether she needed EMS because she had “ a b lood y nos e and [she ] had a few
pu nches and bit e s on [her] body. ” The State offered the 911 call i nto e vi d ence as S ta te Exhibit 1. During the 911 call, Amanda is heard cryi n g
. She tell s the disp atcher she is

out sid e the home and Szarf , who is in side, knows she is calling. She then starts crying and at some point , st ates “ here he comes. ” The dispa t cher te lls he r he will

st ay with her on the c all until the authorities arrive

. Shor tly after, Amanda is heard

scream ing and the call cuts off.
B. Deputy Luis Pizarro Deputy Luiz Pizarro ( “ Deputy Pizarro ” ) , a Washington County Sheri ff ’ s Office p atro l officer, te stified that he res ponded to a call on October 29, 2020 at approximately 10 a. m
. He was told there was an assault and a female had been hit. Deputy Pizarro, Deputy Joshua Martinez ( “ Deputy Martinez ” ) , and Serge ant Gui lle r mo Guerrero ( “ Sergeant Guerrero ” ) responded to the call

. When Deputy
Pizar ro a nd Sergeant Guerr ero arriv ed at t he residence , Deput y Pizarro knocked on5

the door and Szarf eventually came out. He testified Szarf was not combative or

r esistant

. Szarf stated he and Amanda “got in an argument and things got heated. ” Deputy Pizarro testified he was wearing a b ody cam era on the day of the
incident

. A redacted version o f his body cam era recording was admitt ed into
evidence as State Exhi b it 3

. Depu ty Pizarro testified that after the video stoppe d,
he handcuffed Szarf and put him in the back of h is marked patrol car. A t some point after, Amanda came within Szarf ’ s line of vision, and Szarf told her he was

“ sorry. ” 2 Deputy P izarro spok e with Amanda

. He testified s h e was “ crying, shaky

. . . scared. ” According to Deputy P izarro , Amanda app ear ed to be injured . Sh e had a

“ red substance on her face that appeared to be blood . . . with muc us [

. ] ” Amanda ’ s

“ [e]yes were pu ffy ” and “ she had some . . . scr a tches on he r n ec k [.] ” She also had red markings on he r face , neck, and che e k

. Amanda told Dep uty Pizarro tha t Szarf

“ w rapped a sock around her nec k and c hoked her. ” Deputy Piz arro testified that
Amanda ’ s injuries were consistent with w hat Amanda described during her 911

2 State Exhibit 3 was admitted, by agreement of th e parties , with s e veral redactions. It is unclear what the exten t of t hose agreed re dactions were and whether th e State Exhibit 3 that was filed in t he recor d o f this C ourt is the same redacte d e xhibit that was offered at trial

. The State Exhibit 3 in th is Court ’ s record begins with Deputy Pizarro knocking on the fr ont entranc e of the re sidence a nd ends whe n he places S zarf under ar rest and ha ndcuffs him . Although Deputy Pizarro testified at trial that right after he also spoke to Amanda, and the S tate in its appellate br ief references the bo dy cam era video reflecting Deputy Piza rr o ’ s conve rsation w ith Am anda, the S tate Exhibit 3 in this Court ’ s record does not reflect such conversation between Amanda and Deputy Pizarro.6

call. Amanda received m edical treatment from EMS on th e s c ene , bu t she refused
further evalu ation a t a hospita l or clinic. She told EMS she did not want to go to the hospital. Depu t y Pizarro w ent inside the house. He testified he saw clutter and what appeared to be blood drop lets on the floor nea r t h e door

. According to Deputy
Pizarro ’ s rep ort , Amanda had b ru i sing on her nec k a nd the bru i sing was indicative
of s trangulatio n. Deputy Pizarro arr ested Szarf for occlusion assault and
poss e ssion of a controlled substance. 3 He testified that his decision to arrest Szarf
for o cclusion a ssault wa s based on his ob servation of Amanda ’ s injuries as well as
the injuries sh e d escribed during the 911 call. H e testified h is conclusion that
Amanda had been strangled stem med from the markings on her neck and her

statemen t to him that Szarf “ wrapped a sock around he r neck and choked her. ”
De p uty Pi zarro was able t o identify Szarf on the scene based on Szarf ’ s name and
date of birth.
C. Deputy Martinez Deputy Mart inez of the Washington County Sheriff ’ s Off ice testifi ed he was dispatc hed to a disturbance re p orted by a f emale caller who s tat e d that “ s he w as

assa ulted by her boyfriend, that s he was hit, and she was bleeding fr o m the nose. ”
When he arrived at the residence , Deputy Martinez walked around to the back of

3 Szarf pleaded guilty to th e drug cha rge , and that charge i s not before this Co urt

.7

the house while Deputies Guerrero and Piza rro knocked on the front doo r
. De p uty Ma rt inez saw Amanda sitting on the bac k porch

. “ It was cold and windy ” and she was not wearing shoes. Her face was blo ody, particularly around her nos e

area. Deputy Martinez and Amanda moved to the front yard, an d whe n she saw
S z arf , Amanda began to cry

. Dep uty Martinez testified that the injuries he observed were consistent with

“ some kind of disturbance that le d up to some type of an a ssault. ” He also noticed
that the screen of Am anda ’ s phone was cracked

. D. S e rge a nt Guerrero Sergeant Guer rero , a patrol s ergea nt w ith the Was hington County Sheriff ’ s Office , was dispatched to the scene on October 29, 20 20 at approximately 9: 27

a .m. When he arrived at the house, Sergeant Guerrer o fir s t made cont act with
Szarf , wh o was compliant and “ not showing a lot of emotion. ” Szarf prov ided Deputy G uerrero with his name and date of birth ( March 2, 1982 )

. Szarf told Deputy G uerrero that “ Amanda had taken something f r o m him that made him

m ad. ” Sergeant Guerrer o also saw Aman da at the scene. He testified she was

cov ered in s omething “ like sweat , wate r , or something a s if she ’ d been thrown on
t he ground or ro lled around[.] ” He also saw fresh blood on her face and coming
from her n o s e. She se emed upset, and she was cryin g. H e saw markings on her8

che e k where Amanda stated she h ad be en bitten , and slight markings around he r neck.
E. EMS Report While at the scene, t he officers photographed Amanda ’ s in juries and called
EMS to evalu ate her

. The p hoto g raphs depict a blood y nose, a r ound red mark on
Amanda ’ s che e k , red marks on her neck , scratches on her neck , and red marks on her upper ch est. The EMS report note s that EMS wa s di spat ched t o ev aluate a

wom an “ involve d in an assault

. ” According to the report, Amanda told t he E MS

cr ew that Sza rf punched her with a closed fi st , hit on her on the face , and choked
her

. The EMS report notes that Amanda had “ tra u ma to he r nose, ” “ marks to he r neck and sc ra t ch marks to he r upper ches t

. ” It states the patient had “ marks to her
neck and scrat ch mark s to her u pper ch est. ” The report further notes that Amanda

“ denied tra nsport to the ER for evaluation

. ” The pho tographs and the EMS report

wer e admitted into evidence a s State Ex hibits 20

- 25.
F. A m an d a Hazelwood 4
While Amanda consistently told the 911 call disp atcher , the responding
officers , and the evaluati n g E MS personne l that S zarf had assaulted her by
pun ching her with a close d fist and c hoking her, she re canted her testimony a t trial. At trial, Amanda testif

ied she w as the aggressor during th e argument . She testified

4 Ama nda Hazelwo od went by the name Ama nda Breiten bach wh en the ass ault occurred . S he was subpoenaed to appear in court.9

she threw things at Szarf, tha t he accidentally hi t her while actin g in self

- defen se, and that he did not bite her, strangle h er , or intentionally st r ike her.
Amanda testified that Szarf is h er boyfriend and they have been toge ther three years. O n O ctober 29, 2020 , they got into an argument and she beg an to ye l l
and throw kitchen utensils and plates at Szarf

. She test i fied she wa s ang ry because he had not slept in their bed t he night before. Amanda explained that although

t he y argued sometimes, thi s was the first time she ever threw an yth ing at Szarf and
he was shocked when it happened

. After Szarf and Amanda sta rte d to yell, she “ kep t getting in his face. ” She
pus hed him backwards until h e was backed up against the wa ll. She testified that
h e pu t his hands up to try to stop her and he accidental ly hit her in the nose.
Amanda testified Szarf had an open hand when he hit her, which was sort of a “ get back ” push. She testified that she “ freaked out ” and kept ye lling at h i m. She grabbed her phone an d called her sister , who told Amanda to ca l l 9 11

. Amanda told the 9 11 dispatcher that Szarf had attac k ed her. While still on the pho ne with the 911 dispatcher, Szarf came outside the house and yelled at her , but he did not kn ow she was on the phone with 911. She testified she could n ot

rec all a nything h appening while she was on the 911 call that would have made her

scream
. She r emained on the back porch until the authorities arrived.10

Amand a testified that Szarf did not try t o strangle her w ith a sock, even though she ackn o wledged tha t she previously tol d the responding officers at the

s c ene that he did. She testified that she claimed that S zarf had strangled her
because she was mad at Szarf and because she was scared and con fused

. She
testified she had not gotten much s l eep the nig ht before, and when she calle d 911 , she was “ confused about the situation

. ” Amanda acknowle dged , however, that on the day of the incident, she to ld several people t hat he had tr ied to strang le h er : the
three officers who res ponded to the dispatc h and the tw o para medics who
evalu ated her.
Amanda a lso testified she d id not recall having been bitt en or t elling the
officers that Szarf bit her. She did not think Szarf bit he r on the face

. She

conce ded Szarf did strike her in th e face , h o w eve r
. Amanda testi fied that she was confused because of “ the adre naline of us arguing and then getting in the fig ht. ”
She testified that she was embar rassed to have acted that way.
Amanda testified s h e called 911 to make the argumen t stop. She knew law
enforcement would come and Szarf would probably get in trouble. She did not recall whether she t old the officers that her in ju ries st emmed from an accident.
She conceded that after the incident, she did not tell anyone that her injuries we re
t he result of an accident. She denied that t he wound on her face was caused by
Sza rf trying to bite her

. She did not rec a ll b eing hit in the eye. According to11

A ma n d a , Szarf only hit her onc e the day of the 911 call and that w a s an accident.
S he did not recall tel li ng EMS that Szarf kicked her and testified that in fact, he did

no t kick her. Whe n the police heard Szarf tell Amanda he was sorry, she testified
it was because th e y had gotte n into an argument.
Amanda testifie d tha t t h e redness an d bruising below her collarbone w ere

caus ed by h er suici de attempt the day before, when she pu t a curtain a round her

nec k and tied it to a sheet rack

. She testi f ied h er sui cide attempt did not work
because Szarf cut the curtain

. S he testified she has a history of suicide attempts.
She testified she told the offic ers th at some of the marks they were photographing
resulted from self

- in flicted injuries

. Amanda also testified that s ome of the other
i njuries depicted on the photogr a p hs w ere preexisting injuries fr om a fall in the
house a few days prior. Amanda explained that h er reaction on t he day of the assault may have b een

e x agge rat ed b ecause of “ lack of sleep, partying a ll night. ” She testified that the night before the assault, s he and Szarf drank and u sed methamphetamines togethe r
. S he testified she lied to the police about the assaul t because she was mad at Szarf for not sleeping in bed with her. She wanted Szarf to get in trouble but did not
realize th e amount of trouble he w ould get into. She testified she was scared she would get in trouble wit h the police because s he was the one who had st arted th e fight. Amanda testified that s he and Szarf ha d argued before but she bel i eved th is12

fight was the first time she had gotten ph y sically aggress ive toward him. She

test ified she had been the “ first ag g ressor ” in arguments wit h Szarf “ too many [times] to count. ”
G. Crystal Conner Crystal Conner ( “ Conner ” ) i s a forensi c nurse at Baylor Scott & White Hospital in College Stat ion, Texas

. Forensi c nurses take care of patients who have
been assa u lted, “ be i t a sexual assault, abuse, dome stic viole nce, strangulat io n. ”
Conner has testified before as an expert in strangulation

. She tes t if ied that it is

“ very challenging ” to take photos o f neck injurie s. I f a so c k i s used t o apply
pressu re to someone ’ s neck, it is not always the case there will be v isible evidence of it, but it can still cause strangulation. She testified that b ru ising is not common
in strangul ation. T he neck is s o ft, a nd whe n you apply pressure to the neck, “ you can either occlude

— there ’ s veins, arteries, and your trachea that a re in your throat and if you apply pressu re, you can

— if you ’ re applying pressure to the veins or the

a rteries , you decrease the blood flow and t hat ca n caus e a wider range of problems, such as dizziness, loss of co nsc iousness, tingling, things along those lines. Applying pressure to the trachea cau s es discomfort. I t can also cause

. . . coug h ing or difficulty breathing. ”
Conno r testified that m emory loss or confu s i on may result af ter a strangulation. Alcohol or drug us age also can affect memory or make someone13

confused. In situations of domest ic violence, it is not surp rising for the victims to
have a d ifficult ti me recalling events. It is a lso common f or victims later to change
their version of events. She testif ied she did no t interact with Szarf o r Am a n da o r

rev iew the evidence in this case.
Szarf di d not testify. A f

ter arg u ment s of cou nsel, the trial court found Szarf guilty o n Count s 1 and 2 as r ecited in the indic tment . During the punishment phase of trial, the S t ate introduced S zar f ’ s prior felony DWI conviction as an enha ncement. Szarf pleaded guilty to the DWI en ha nc e m ent , increa sin g the punishment range fo r t he charged offenses to first

- deg ree felon y for C ount 1 and
second

- degree fe lon y for Count 2. T he trial court sentence d S zarf to ten years ’ incarceration at the Texas Department of Justice, Institutional Division o n Count 1,
and five

- years ’ incarceration on Cou nt 2, to run c oncurrently.
D iscussion A Standard of Review We apply the legal sufficiency standard s et out in Jackso n v . Virgi nia , 443
U.S. 307 (1979 ) i n determining whether the evide nce is sufficient to sup p ort each
el ement of a criminal off ense that the state must pr ove beyond a r easonable doubt

. See Brooks v. State , 323 S.W.3d 893, 89 5 (Tex. Crim. Ap p. 2010)

. In e val u ating the legal sufficiency o f the evidence, we defer to the fa ct finder ’s credibility a n d weight de terminations

. Id. at 894. “ [ W ] e view the evidenc e in the light most14

f a vorable to the verdict and determine whether any rational trier of fact c ould have
found th e essent ial elements of the off ense beyond a reas onable doubt. ” Matlock v. State , 392 S. W .3d 662, 66 7 (Tex. Crim. App. 2013) (citing Jack son , 443 U.S. at 319; Br o o k

s , 323 S.W.3d at 895). We consider both direct and circumstanti al
eviden c e in our analys is

. Laste r v. State , 275 S.W.3d 512, 517

– 18 (Tex. Crim. App. 2009) ; s ee Kuciemba v. State , 31 0 S.W.3d 460 , 462 (Tex. Cr im. App. 2010) ( “Circumst antial evidence is as pr o bative as direct evidence in establishing the guilt of an actor” and “the standard of re v iew on app eal is the same for bot h direct
and circumstantial eviden ce cases.” ) (quoting Gue v ara v. Stat e , 152 S.W.3d 45, 49 (Tex. Crim. App. 2 004))

. The legal

- suffici e ncy standard does not blindly defer to the fact finder ’s credibility deter minations , as “ i t a l lows f or some consideration o f whether the [factfinder ’s ] credi bility de terminations we r e rational in light of the objective
evidence. ” W

alker v. State , No s . PD

- 1 4 29

- 14, PD

- 1430

- 14, 2016 WL 6092523, at *15 (Tex. Crim. App. Oct. 19, 2016) (not de sig na ted for public ati o n) ( ci ting
Brooks , 323 S.W.3d at 907 ). W e must presume the fin der of fact resolved any evid en tiary con flicts in favor of the verdict and defer to th at res oluti o n
. See
Jackson , 443 U.S. at 326 ; se e also Morgan v. St a te , 50 1 S.W.3d 84, 89 (Tex. C rim. App. 2016) (observing that re viewing court ’ s role on a ppeal “is r estricted to guarding against the rare occurrence when a fact f i n der does not act rationally”)15

(quoting Isassi v. State , 330 S.W.3d 633, 638 (Tex. Crim. App

. 2 010) ). If our
revi ew revea ls the evidence is legally insuffi cient, we must reverse t h e appellant ’s
conviction. Costilla v. State , 650 S.W.3d 201, 212 (Tex. Ap p
. — Houston [1st Dist.] 2021, no pet.)

. However , if there are two permissi ble views of the ev i dence,

“ the fact find er ’ s choic e between them cannot be clearly e rroneous. ” Evans v. State , 202 S.W.3d 158, 163 (Tex. Crim. App . 2006).
B. Applicable Law A Class A mi sd em e a nor assault occurs when a pers on “ intentionally , k nowingly, or reck lessly causes bodily injury t o another, including the person ’ s
spouse. ” T EX
. P ENAL C ODE § 22.01(a) (1) , (b)

. A Class A mi sdem e anor assault may be enhanced to a third

- degree fe lony if t he p erson commits the offense by

“ intentionall y, kno w ingly, or r ecklessly imped ing the normal breath ing or
circ ulation of the blood ” of a family member 5 “ by applying pressure to the
person ’ s th roat or neck or by blocking the person ’ s nose or mouth. ” T EX
. P EN AL C ODE § 22.01(a) (1) , (b ) (2)(B )

. This offense is known as Occlus ion Assault

.

5 We use the term “ f amily member ” here to mean a “ person whose relationship to or associat ion with the defendant is described b y Section 7 1.0021(b), 71.003, or 71.005 o f the Texas F amily Code. See T EX

. P E NAL C ODE § 22.01 (b ) (2 ), (b

- 3) ; see also T EX

. F AMILY C ODE § 71.0021 (b) ( d ating relationship s ) ; id

. § 71.003 ( family members ) ; id

. § 71.00 5 (h ousehold m e m b ers)

. The parties do n ot dispute t hat Amanda w as a household m em ber and thus a “ family m ember ” for pu rposes of th e applicable statute.16

Relevant to this appeal, Oc clus ion Ass ault may also be enhanced to a
second

- degree f

elony if “ it i s s hown on the trial of the offense that the defen dant has been previous ly c on victed ” of family viole nce
. Id. § 22.01(a) (1) , (b

- 3 ). In
such a case, e vi dence of a prior conv iction is a n elemen t of the offense.
When proof of a prior conviction is a juris d ictional el ement of a crime , the fact of the prior c onviction, including t he ident ity of the accused , must be proved beyond a rea sonable doubt

. Wil m er v. State , 463 S.W.3d 194, 1 97 (Te x. App.

— Amarillo 2015, no pe t.)

. To establish that the defendant was c onvicted of that prior offense, the State must prove beyond a reasonable d oubt that “ (1) a prior
conviction exists and (2) t he defendant is lin k ed to that conviction. ” Flowe rs v. State , 220 S.W.3d 919, 921 ( Tex. Crim. App. 2007)

. Texas law does not requ i re that a p rior conviction be proven in any specific manner. I d

. at 922

. “ Any type of evidence, documentary or testimonial , might suffice. ” Id.
C. Occlusion Assault
I n his fi rst two iss ue s , Szarf challen ges the legal sufficiency of the evidence to support his convict ion for O cclusion A ssault. In his first issue, he challenges t he

“ impeding ” element of the offense, claiming there is insufficient evidence that he

“ actually impe ded the nor mal breathing or the circulation of the blood of
Amanda. ” In his seco n d issue , Sz arf argues the State failed to establish he was previously co n v icted of a family violence offense , and th us there was insu fficient17

evidence of the enhancement nece ssary to el e v ate the charged assault to a second

degree fe lon y. 1. Evidence of Imped i ment To est ablish Oc c l us ion Assault , the State must prove beyond a re aso na ble
doubt that Szarf “ impeded ” Amanda ’ s normal breathing

. McCall v. State , 635 S.W.3d 261, 267 (Tex . App.

— Aust in 2021, pet. ref’d) (cit ing T EX
. P ENAL C ODE § 22.01(a)(1), ( b )(2)(B) )

. The term “ imped ing , ” as u sed in Section 22.01, is not
de fined

. In Mar

sh all v. S t

ate , 479 S.W.3d 840, 844 (Tex. Crim. App. 2016 ), t he
Court of Criminal A p peals defined “ impeding ” as “ [a] hindrance or obstruction. ”
The defendant in Marshall covered the complainant ’ s face with a pillow. Id. at
842. The complainant was still able to breath e , j ust not deep ly. Id. The Court
h eld tha t because “ the plain meaning of the statutory la ngu a ge indicates that any impedim e nt to norma l breathing ” is sufficient, evidence that the complainant was

u nabl e to take deep breaths was sufficient to s upport the defendant ’ s conviction for
Occlusion Assaul t. Id. a t 84 4

– 45. The Court held th at the “ ju ry did not need to find that [the c omplainant] actually sto pped breathing or that she was
unconscious. ” Id. a t 84 4

. T he Court concluded , “ An impedim ent to normal breathing does not necessarily prevent breathing altogether because an impedim ent is merely a hindr ance or obstruct ion

. ” Id. at 845. M o re recently, relying o n Marshall , the Court of Criminal Appeals held that :18

[A] ny hindrance, obstr uction, o r impediment fo r any amount of time to one ’ s breathing or blood flow is per se a bodily inj ury and the refore suf ficient to sat isfy family

- vi olence assault. This is an exce p tionally lo w bar. It takes very little effort or force to slightly hinder another ’ s breathing or circulation, and there is notably no injury or threat o f injury requiremen t a side from the impedi ment, however minimal.
Phil mon v. State , 609 S.W.3d 532, 53 7 (Tex. Crim . App. 2020)

. Szarf argues the State ’ s case “ is completely lac king any testimony or other
evi dence ” to prove Ama n da experienced “ actual occlusi on , ” such as diffic ulty
breath ing, cough in g, or symptoms in d icating blood flow impairment

. Szar f acknowledges that Amanda told the officers he punched her and choked her with a sock, and that ther e wa s “ some photographic evidence suggesting that she had
bru i sing an d/or abra sions aroun d her neck

. ” He argues, however, that t he
p hotogra phic evidence does not prove O cclusion A ssault because there must be evidence that Szarf imped ed Ama nd a ’ s breathing or the circulation of her blood.
Szarf asserts that a mere “ excited utterance ” by Amanda at the sc ene that Szarf

“ choked ” her w i thout an ex planation of the “ effects she may have suffered as a
result ” is not sufficient to prove O cclus ion A s sa u l t

. The S t ate re sponds that Amanda “ consistently ” told law enfo rcement and medical person nel at the scene “ tha t A p pellant wrap p ed a so ck a round her ne ck
and choked her. ” The officers testified that Amanda had red mark s and scratches
on her nec k , blood on her face, puffy eyes, and red marking s on he r cheek.
P hoto graph s of these injuries w ere admi t ted into ev idenc e
. I n addition to19

Aman da ’ s statement s t o police and EMS personnel , the 911 call , and the photo graph s, t he State points to Connor ’ s testimony t ha t when you apply pressure to the neck, you can occlude the veins, arte ries , and t r achea, and that a p plying
pre s sure to th e veins or arteries decreases blood flo w. In reviewing Szarf ’ s first issue, we find Losoya v. State , No. 07

- 17

- 00061

- CR, 2018 W L 50 94 001 (Tex. App.

— Amarillo Oct. 18, 20 18, no pet.) ( mem. op., not designated for publ i cation) ins tructi ve
. In Los oya , the a ppellant , having been
convicted of O cclusion A ssault, contend ed th ere was insufficient evidence to support the allegation that he imp ed ed the complainant ’ s normal breathing or
circulation of blood. Id. at *1. The co m plainant wa s the appellant's mother. During trial, the re sponding officer testified the complainant told h im “ she was asleep in her bed ‘ when she was awakened by [appella n t] choking her and punching her in the fac e and the h e ad multiple times

. ’ ” Id. S h e was able to get away and c all 911. I

d. The complainant “ rep eated to a fireman and a paramedic that appellant awakened her by c hoking and punching her. ” Id. And medica l
records reflecte d she “ told medical personnel that she had been choked or strang l e d
and had n e ck pa i n. ” Id. An officer a lso “ noticed red ness on [her ] neck, face, and
chest area. ” Id

. Like Amanda at trial, the complain ant in Losoya testified she
could not remember th e night of the assault , and she could not recall bein g chok e d

. Id

.20

The court hel d tha t t h e complainant ’ s prior “ state m ents that appellant choked or strangled her, coupled with t he redness on her neck and her neck pain, readily allowed the jury to conclude [appellant impeded her breathing or
ci r culation of blood ] by applyi ng pressure t o her neck or thr oat. ” Id. at *3. “ T he jury was free to believe the testimony of the police officer, the firefighter, and the
para medic rather than what [th e complainant ] said during her testimony

. ” Id. The

cou r t also note d th e s i gn i fic anc e of testimon y from a nurse offered as a strangulation expert, who “ descr ibe [ ed ] the little pressure required to restrict or impede breathing or blood flow , ” and of the co mplainant ’ s 911 call , during which she told the dispatch e r th at appe llant had pu n ched her and she was hurting

. Id.
The court held: [T] he jury readily could have concluded appellant used signific ant force during his assault

. Con sidering that evidence, al ong with the testimony of the redness of her neck, and t h e pain that she d esc rib e d to medical pers onnel, we find the jury's conclusion his choking or strangling [ t he complainant] impeded her normal breathing or blood circulation w as a reasonable inference from the facts shown and not mere speculation

. Id. The opinion in H

e nnard v. S t

ate , N o. 10

- 14

- 00 324

- CR, 2015 WL 5474796 (Tex. App.

—

Waco Sept. 17, 2015, no pet.) ( m em. op., not designated for publication) also is instructive

. The complainant in Henn ard told police that her
brother , the appellant, “ slapped and choked her i n the living room of their ho me,21

and then the fight continued in the bedroom where he hit her again and stomped on
her. ” Id. at *2. The officer s testified that the complain ant had re d n e ss on her neck
and that the redness was con sis t ent with being strangl e d. Id. Th e comp lainant , wh o said she di d not want to appe ar a t trial, testified she had taken pres cription medication the day of the assault and could not recall what happ ened that d ay
. Id.
She testified she did not remember talking to t h e police or givin g a stateme nt. I d.
L i k e Amanda in the present trial, the complainant tes tif i ed that the b r uising on her
neck may have been self

- in flic ted, because she previously trie d to choke he r self.
Id. She testified that her brother had “ never touched her and that he would not h urt he r. ” Id. The State introduced photo graph s show i ng the injuries on complain ant ’s
neck

. Id

. at *3. The court of appeals sta ted the factfin der “is entitled to ju dg e the

cr edibility of witnesses and can choose to believe all, some, or none of the testimony p resent ed by the p arties. ” Id. (citing Cha mbe r s v. State , 805 S.W.2d 459, 461 (Tex. Crim. App. 1991) )

. The court affirmed the trial court ’s judgment convicting t he appellant of O cclusion A ssault. Id.
Neither Losoya nor Hennard included a di s cussion of whethe r the compl ainant ’s breathing or cir cul a ti on was actually impeded. To the extent the
factfinders inferred such a finding from the evidence, we note that e v idence is sufficient to support a conviction if “the inferences necessary to estab l ish guilt a re

rea so nable bas ed upon the cumulative fo rce of all the evidence when considered in22

the light most favorable to the verdict.” Edwa rd v. State , 635 S.W.3d 649, 6 55

– 56 (Tex. Crim. App. 2021)

. Moreover, evidence that breathing or blood circulat i on was impe ded is a n “exc ept ionally low bar ” because “ [i] t takes very little effort or force to slightly hinder another ’ s breathing or circulat ion [

. ] ” Philmon , 609 S.W.3d

at 537

. In the present case, t he evidence support i ng the “ i mp eding ” element of
O c clu sion Assault inclu ded Amanda ’ s 911 call, the EMS re port, photographs taken on the day of th e incident, testimony from the three responding officers reflect i n g the in juri es to Am anda ’ s n eck , and Amanda ’ s statements to EMS and t h e

re sp o ndin g offe rs that Sza r f choked her with a soc k and hit he r with a close d fist. During the 911 call , A manda tells the dispatcher she has a “ blood y no se ”
and a “ few p unches and bites ” on her body. Amanda tells the disp atcher she is the only one in

j ured. She is hea rd crying a nd scream ing at the e nd of the 911 c a ll

. The trial court also heard testimony from Deputy Pizarro that Amanda t o ld him
Szarf choked her with a s ock , and he saw red marks on her neck. Amanda also acknowledged at trial that she told the th ree re sponding of ficers and the two
par am edics who evaluate d her that Szarf c hoked her with a sock. And t he EMS report reflect s that Amanda told the paramedics S zarf punched her with a c lose d first, hit her o n the fac e , and choke d her. T he EM S report not es tra uma to the n o se,23

marks to the neck, and sc ratch marks on Amand a ’ s upper ches t . The photographs
also reflect injuries to A manda ’ s nose, che e k , nec k, and uppe r chest

. Separately, th e tria l court also heard testimony from the S tate ’ s str an g ulation
exp ert th at i f a soc k is used to apply press ure to someone’s neck, there will not always be visible evidence , but it can still cause strangulation. She testified th at the ne ck is sof

t and “ you ca n either occlude

— there’s veins, arteries, and your

t rachea that are i n your thr o at and if you apply pres sure, you can

— if you’re applying pressure to the veins or the arteries, you decrease the blood flow and that

can cause a wider range of problems, such a s dizziness, loss of consciousness, tingling, thing s along thos e line s. Applyi n g pressure to the trache a causes discomfort. It can also cause . . . coughing or difficulty breathing.”
We hold tha t Amanda ’ s prior state m ents that Szarf choked her wi th a sock, coupled with t he redness and scratches on her n eck and che st are a, her stat ements and dem e anor duri ng the 911 call , and Conner ’ s t estimony concerning

stra ngulation together allowed the jury to conclude that Szarf impeded Amanda ’ s breathin g or ci rculation of blood by applying pressure to her neck or th r oat. Whi le Ama nda re cante d her testimony a t trial and testified she w as the aggressor
and that Szarf did not bite her, strangle h er , or intentionally strike her , t he tria l

court was free to belie ve the testimony of the police officer s and the reports of the
parame dics o ver Amanda ’ s trial testimony.24

V i ewing the record in th e light most favorable to the trial court ’ s verdict, w e conclude the evidence is suffi cient to supp ort Szarf ’ s convictio n fo r O cclusion
A ssault. We overrul e Szarf ’ s first issue.
2. Pre vious Assau lt Con viction Cou nt 1 of t he indictment c harged Szar f with Occlusion Assault . To

e nhance the offense from a t hird

- degree felony to a second

- degree felony, t he
in dic tment alleged that Sza r f was prev iously convi cted in 2006 of an offense
involvin g family vi olence

. Szarf a rg ues that the eviden ce is i nsufficient to prove
he was convicted in 2006 o f family viole nce assault , which h e argues is a required
element of O c clus ion A ssault as charge d in th e indictment

. Given the
insufficien cy of th e evide n ce on t his point , s hou ld we conclude there was suff icient
evide nce of impediment to s upport S zarf ’ s conviction for Oc c lu sion Ass ault under
his first issue , Szarf argues we should modi f y the final j udgment to reflect a
conviction for Occlu sion Assault as a third

- d egr ee , ra ther than s econd

- degree, felony , “ a ffirm the conviction as modified, reverse the punishment, and remand the case to the trial court to conduct a new p unishm ent hearing consi stent wi th the range of punishment for the applicable lower

- le vel offense. ” 6 The State respo nds
that State E xhibits 9 and 10 sufficiently link S zarf with a 2006 family violence

6 Szarf was s entenced to ten years ’ imp risonment for Count 1

. Th e imposed s entence falls within the maxi mum punishment range for a third

- deg ree felony. T EX

. P ENAL C ODE § 12.34.25

assa ult co nviction through his unique name, date o f birth, g en der, race, cause number , court number , and offense

. To es tablish that a defendan t has been convic ted of a pr ior offense, the State

m ust prove beyond a reasonable doubt that “ (1) a prior conviction exists and (2)

t he defendant is lin k ed to that convictio n. ” Flowe rs , 220 S.W.3d at 921

. The trial

court must consi der wh ether “ the to talit y of the evidence establishes beyond a
reasonable d ou b t ” the link be tween the defendant and the previous co n v iction

. Wood v. State , 486 S .W.3d 583, 589 (Te x. Crim. App. 2016). In F lowers v. State , 220 S.W.3d 919 (T ex. C rim. A pp. 20 07), t he Te x as Court of Criminal Ap peals explained that there is no specific doc ument that is re quired to link a de fendant to a prior c o nviction : There is n o “best evidence” rule in Texas t hat requires that the fact of a prior convictio n b e proven wi th any document, much less any specific d ocument. While evidence of a certified copy o f a final judgment and sentence may be a preferred and c onvenient means, the State may prove both of these el ements in a number of different ways, including (1 ) the defen dant ’ s admission or stipulation, (2) test imony by a person who was present when the pe rson was convicted of the specified crime and can ident i fy the defendant as that person, or (3) documentary p roof (such as a judgment) that contains suffici ent informatio n to e stablish bo th the existence of a pr ior conviction and the defendant ’ s identity a s the person convicted.
Id. at 9 21

– 22 (interna l citation s omitted). The C ourt in Flowers like ne d the

e vidence required to link the two e lem ents to the piece s of a jigs aw pu zzle: “T he pieces standing alone usually have little meaning. However, when the pieces are26

fitted together, they usually form t he picture o f the person who committed that

a lleged prior conviction or convictions

. ” Id. ( cit i ng H uman v . Stat e , 749 S.W. 2d
832 , 835

– 36 (Tex. Cri m. App. 1988) ). Th at th e defendant is the same person identified in th e prior conv ictions may be establ ished “in a number of different ways.” Flowers , 220 S.W. 3d at 921 ; see also Human , 749 S.W .2d at 836 (noting
that circumstantial evidence may be used t o prove prior conviction); Demers v. State , No. 05

- 11

- 01704

- CR, 2013 WL 323446, at *2 (Tex. App.

— Dallas Jan. 29, 2013, no pet.) ( not designated for publication) ( “ The State may use circumstantial
evide nce to prove the defendant is the same person named in the prior
convictions. ”)

. T he State al leged in its indictment that Szarf previously was convicted of family violenc e as s ault on October 11, 2006 in C ause N o. 1407 642 in County
Cri minal Court at Law No. 11 of Harris County, Texas. Th e trial court admit ted a
cert ified copy of the 2006 convi cti on of an Evan Michae l Szarf into evidence as
State E xhibit 10 (the “ 2006 Offense ” )

. S t ate Exhibit 10 state s that a defendant
named Eva n Micha el Szarf pleaded guilt y on O ctober 11, 2006 to “ assau lt

– family
member

. ” A ce rtified co py of t he c harging ins trument for the 2006 Offen se , which
occurred on O ctober 4, 20 0 6, was o ffered into evidence as State E xhibit 9. State
Exhibit 9 state s the assaul t was committed by Eva n Michael Szarf , a whi te male
with a date of b i rth of Mar ch 2, 1982, against a woman with wh om he had a dating27

relationship , by “ strangl ing the complain [an] t with his hand ” in Harris County,
Texas. State Exhibit s 9 and 10 involve the same defendant, caus e number, offense,
and court.
D u ring the t rial, Se rgeant Guerrero te stified t hat when he talked to S zarf on the day of the incident , Szarf told him his birthday was March 2, 19 82. That is the
same date of birth reflected in State E xhibit 9. Deput y P iza rro also testified th a t he

was a ble to ide ntify S za rf a t the scene ba s ed on hi s name and date of birth , both of
which ma tch the name and date of birth on S tate Exhibit 9

. Szarf argues that the State did not sat i sfy its burden to pro ve beyond a

reaso nable doubt th at a prior c o nviction e xists and that he i s conn ected to that prior

c onviction. He asserts that “ [ a ] mere prior judgment bearing th e same name as the
defendant on trial is insufficient to show he was the same person actually
convicted. ” 7 We agre e t h at a name

— or even a mere name and bi rt hdate

— is insufficient proof

. “ Clear ly, we must not depend only on a name or even a name
and a bir th date ” to link a defendant to a prior conviction. Fl o wers , 220 S.W.3d at 925 ( Johnson, J., concurring )

. 8

7 Szarf conced es that if State Exhibit 10 “ was properly proven beyond a re ason able doubt to be conne cted to [him], it would indeed suffi ce to enhance the indicted allegations from a third

- degree to a second

- degree fe lony. ”
8 S e e also Strehl v. Sta te , 486 S. W.3d 110, 11 4 (Tex. App.

— Texarkana 2 016, no pet.) (“Evidence that the defend ant merely has the same name as the person previously conv icted is not su fficient to satisfy the prose cution ’ s burde n.”)

.28

The Stat e d i d not prof

fer testimony from an expert fingerpr int analys t to compare and opine on th e prints present on State Exhibit 10

. 9 Nor did it offer testimony from a person who was pr esent when Szarf was convicted of the prior
offense and could identif y S zarf as t hat person

. There are also no p h otogra phs

atta ched to State Exhibit s 9 an d 10, and S zarf did not stipul ate to any evi d ence of
connection or provide any ad missions concerni ng the 2 006 Offense

. The S tate contends , however, that it offered m ore than a mere name and d at e of birth to satisfy its burden be cause in addition to State Exhibits 9 and 10, it also proffered
evidence of a similar offense committed by Szarf in a nea rby c ounty in 2007. The
Sta te points to State E xhibi t 7 , a 20 12 Probation Violatio n Re p ort that p ertains to

an “ Evan Michael S za r f

” wh o was granted probati on in 2010 for a 2007 charge of
Assault

- Family Violence. 10 The Probation V i olation Report incl udes a p hotograph
of Ev an Michael Szarf

. 11 T he State notes that Sza r f do e s not cont end in his brief
and did not con tend at trial that h e was not the Ev an Mic hael Sz arf identified in
State E xhibit 7. While that may be the case, w e agree with Szarf that S tate E x hi bit

9 There is a th umbprint on State E xhibit 10 , b ut the thum bprint is il legible.
10 State Exhibits 5 , 6, 7, and 8 pe rtain to the enhancement allegation in Count 2 of the indict ment and are not related to the enh ancement allegations reci ted in Count 1. The case reflect ed i n State Exhibit 7 is St ate of Texas v. Evan Micha el S zarf , Cause No. 07

- DC R

- 048432, in the 240 th Judicial District Court of F or t Bend C ounty, T e xas. S tate Exhibits 5, 6, and 8 also pertain to th at case
. State E xhibit 5 is a judgment, State E xhibit 6 is a m otio n for a djudicati on of g uilt , an d State E xhibit 8 is the ju dgment ad j udicating guilt

. 11 Szarf concedes that State Exhibit 7 cont a i ns his photo graph

.29

7 is unr elated to the 2006 Offense alleged in the indictm ent a nd alone i s insu fficient to establish the requisite connection betwe en Szarf and the 2006
O ffen se. See Zi mmer v. State , 989 S.W.2d 48, 5 2 (Tex. App.

— San Antonio 1998, pet. ref’d) (holding that S tate, in attemptin g to prove two prior DWI convictions,

succ essfully pr oved o ne prior conviction, but that conviction did not lin k defenda nt

to sec ond DWI c onviction o f person with s ame name )

. Nonetheless, we find that based on Szarf ’ s unique name , t he listing of his
correct date of birth on State Exhibit 9, t he i dentificati on of Szarf in the same
exhibit as a whi te male , t he type of assaul t committed , and t he nearby c ounty in which the prior assault was committed , the trial court could have fou nd th ere was sufficient evidence to prove the prior conviction exis t ed and that Sz arf , a person with the same unique name, date of bi rth , ge n d er, and race as the defen dant in the
2006 Offe nse, was lin k ed to th e prior conviction.
The State asks this Court “to j u d ic i ally notice that Washington County is
within about 80 m i les of Harris County

. ” We do so. 12 See Thac k er v. State , No.
08

- 18

- 0008 5

- CR, 202 0 WL 1303555 (Tex. App.

— El Pa so Mar. 19, 2020, pet. ref’d) (not designated for publication) . In Thack er v. State , the State proffered evidence that the appellant ’s full name and birth date match ed that of the person

12 We may take ju dicial notice of facts that are “ notorious, well known, or eas ily ascerta inable , ” such as the distanc e betw een two ge ographical locations

. Benton v. State , 336 S.W.3d 355, 359 n.8 (Tex. App.

— Texarkana 2011, pet. ref’d) ( citations omitted).30

identified i n the prior convic tio n. Id

. at *12. The cour t of appeal s found it “significant ” that the prior c onv iction came from Alamance County and the appellant ha d lived in Burlington, North Carolina, part of w hich is in Alam ance C ounty. The court stated, “We fin d it unlikely that there wou ld be mor e than on e

‘ William Geoffrey Thacker ’ with the same birth date, residing in or near Alamance County, who could have been the subject of the prior conviction

. ” I d. ; s ee also
B rown v. Sta te , No. 06

- 19

- 00082

- CR, 2019 WL 6 3 34707, at *5 (Tex. App.

— Tex ar kana Nov. 27, 20 19 ) ( mem. o p., not designated for publication) ( o bservi ng that def endant was linked to pr io r conviction “by nam e, birth date, type of offense, and county o f off

ense ”) , rev ’ d on other gro unds , 618 S.W.3d 352 (Te x . Crim. App. 2021)

. View ing the evidence in t he light mo st favorable to the State, we conclude
suffi cient evidence was presented linking Szarf to the prior crime of family
violence assault. We hold t ha t a rational trier of fact could have found beyond a
reasonable doubt t hat (1) a prior conviction for family violence assault in Harris County C ause No. 1407642 existed and (2) legally sufficient evi dence linked Szarf
to that conviction. See Orsag v. St ate , 312 S.W.3d 105, 115 (Tex. App.

– Houston [14th Dist

. ] 2010, pet. ref ’ d ) (factfi nder c onsiders “ tot ality of the ev idenc e ” to determine whether State proved pri or conviction beyond reasonable doubt)

. We overrule Szarf ’s seco nd issue.31

3. Reforming the Judgment 13
Sza rf as serts in his third and fourth issue that the t rial court ’ s f inal judgment
incorrectl y refle ct s the cla ssification of the offens es for which he was char ged. In Count 1, S zar f was charged with Occlus ion Assault with Prior Offense, pursuant to
Secti on 2 2.01(b

- 3) o f the Penal Code, a second

- degree felony. In Count 2, he was charg ed with A ssault Fa mily Member with Previous C onviction , pursuant to
Sect i o n 22.01(b), a third

- degree felon y. The final judgment s , however, recite the degree s of t he c rimes a s first de gree fo r Count 1 , and second degree for Count 2.
The Stat e concedes that the final judgmen t s are inco rrect with respect to
bot h counts and should be ref ormed. The State concedes the final judgment for the
O cclusion A ssault c onviction under Count 1 should be refo rmed to reflect the
offense is a second

- degree fel o n y and the final judgment for As sault Famil y Member under Count 2 should be reformed to reflect the offense is a third

- degree felony.
A review of the final judg ment s indicat es A ppellant is correct about th e mistaken identification of the degree of the off en ses
. We thus sustain S zar f ’s t hird
and fo urth issues

. Courts of appeals have the power to r eform and correc t judgments. Harris v. State , 670 S.W.2d 284, 285 (T ex. App.

— Houst on [1st Dis t.] 1983, no pet. ). P u rsuant to such a uthority , we reform the final judgments of the

13 The two judg ments bear the same cause number. Therefor e, w e refer to them collective ly.32

trial court by changing t he listed de g ree for Occlusion Assault under Count 1 to second

- degree , and for Assault F a mily Member under Cou nt 2 to third

- degree

. Conclu sion
W e affirm the t ri al court’s judgm ent , as refor med

.

Veronic a Rivas

- Molloy Justice

Panel consi sts of Jus tic es Goodman, Landau, and Riva s
- Molloy

. Do not publ ish. T EX
. R. A PP
. P. 47.2(b).