Evan Michael Szarf v. the State of Texas

Opinion issued August 10, 2023

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-22-00530-CR

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EVAN MICHAEL SZARF, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 21st District Court

Washington County, Texas

Trial Court Case No. 19208

MEMORANDUM OPINION

Appellant Evan Michael Szarf was charged in a two-count indictment with

assaulting his girlfriend. In Count 1, he was charged with Family Violence on a

Household Member by Impeding Breath or Circulation with a Previous

Conviction, a second-degree felony, and in Count 2, he was charged with Assault

Family Violence of a Family or Household Member with a Previous Conviction, a

third-degree felony. Appellant pleaded not guilty. Following a bifurcated bench

trial, the trial court found Appellant guilty on both counts and sentenced him to ten

years’ confinement and five years’ confinement, respectively, in the Institutional

Division of the Texas Department of Criminal Justice. The sentences are to run

concurrently.

Appellant appeals from his conviction under Count 1.1 In four issues, he

argues (1) the evidence is insufficient to prove he committed Family Violence on a

Household Member by Impeding Breath or Circulation, (2) the evidence is

insufficient to prove he was previously convicted of a family offense; and (3)-(4)

the final judgment incorrectly recites the degree of the offenses for which he was

convicted under Counts 1 and 2.

We affirm the trial court’s judgment as reformed.

Background

Appellant Even Michael Szarf (“Szarf”) and his girlfriend Amanda

Breitenbach (“Amanda”) lived together at a residence in Washington County. The

1

Appellant does not appeal from his conviction under Count 2, but as noted, he

seeks reformation of the final judgment to reflect the proper degree of the offenses

for which he was charged. As it concerns Count 2, Appellant claims, and the State

concedes, that the final judgment incorrectly states he was convicted of a second-

degree felony and should be corrected to reflect he was convicted of a third-

degree felony for Assault Family Violence of a Family or Household Member with

a Previous Conviction.

2

morning of October 29, 2020, they got into a heated argument and a physical

altercation ensued. Amanda called 911 crying and complaining of a “bloody nose”

and “a few punches and bites on [her] body.”

Two deputies and a sergeant from the Washington County Sheriff’s Office

were dispatched to the house. They knocked on the front door. After a few

minutes, Szarf emerged from the house and stepped outside. Szarf told the police

he and Amanda had gotten into a heated argument and he struck Amanda with an

open hand. Amanda also told the officers that Szarf had hit her and choked her

with a sock. The officers took photographs of Amanda’s injuries and called

emergency medical services (“EMS”) to evaluate Amanda.

The officers arrested Szarf. He was charged with the second-degree felony

of Family Violence on a Household Member by Impeding Breath or Circulation

with a Previous Conviction under Section 22.01(b-3) of the Texas Penal Code

(“Count 1”), and the third-degree felony of Assault Family Violence of a Family or

Household Member with a Previous Conviction under Section 22.01(b) (“Count

2”). Both counts were enhanced in a separate document with Szarf’s prior felony

DWI conviction.

The Trial

Szarf pleaded not guilty to the two assault charges. He waived his right to a

jury trial and the trial judge conducted a bifurcated bench trial on the two Counts.

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A. The 911 Call

The morning of October 29, 2020, Amanda called 911 crying and

complaining of a “bloody nose” and “a few punches and bites on [her] body.”

Amanda told the 911 dispatcher she was calling about a “domestic violence issue.”

She stated she was the only one injured and told the dispatcher she was not sure

whether she needed EMS because she had “a bloody nose and [she] had a few

punches and bites on [her] body.” The State offered the 911 call into evidence as

State Exhibit 1.

During the 911 call, Amanda is heard crying. She tells the dispatcher she is

outside the home and Szarf, who is inside, knows she is calling. She then starts

crying and at some point, states “here he comes.” The dispatcher tells her he will

stay with her on the call until the authorities arrive. Shortly after, Amanda is heard

screaming and the call cuts off.

B. Deputy Luis Pizarro

Deputy Luiz Pizarro (“Deputy Pizarro”), a Washington County Sheriff’s

Office patrol officer, testified that he responded 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 Sergeant

Guillermo Guerrero (“Sergeant Guerrero”) responded to the call. When Deputy

Pizarro and Sergeant Guerrero arrived at the residence, Deputy Pizarro knocked on

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

resistant. Szarf stated he and Amanda “got in an argument and things got heated.”

Deputy Pizarro testified he was wearing a body camera on the day of the

incident. A redacted version of his body camera recording was admitted into

evidence as State Exhibit 3. Deputy Pizarro testified that after the video stopped,

he handcuffed Szarf and put him in the back of his marked patrol car. At some

point after, Amanda came within Szarf’s line of vision, and Szarf told her he was

“sorry.” 2

Deputy Pizarro spoke with Amanda. He testified she was “crying, shaky . . .

scared.” According to Deputy Pizarro, Amanda appeared to be injured. She had a

“red substance on her face that appeared to be blood . . . with mucus[.]” Amanda’s

“[e]yes were puffy” and “she had some . . . scratches on her neck[.]” She also had

red markings on her face, neck, and cheek. Amanda told Deputy Pizarro that Szarf

“wrapped a sock around her neck and choked her.” Deputy Pizarro testified that

Amanda’s injuries were consistent with what Amanda described during her 911

2

State Exhibit 3 was admitted, by agreement of the parties, with several redactions.

It is unclear what the extent of those agreed redactions were and whether the State

Exhibit 3 that was filed in the record of this Court is the same redacted exhibit that

was offered at trial. The State Exhibit 3 in this Court’s record begins with Deputy

Pizarro knocking on the front entrance of the residence and ends when he places

Szarf under arrest and handcuffs him. Although Deputy Pizarro testified at trial

that right after he also spoke to Amanda, and the State in its appellate brief

references the body camera video reflecting Deputy Pizarro’s conversation with

Amanda, the State Exhibit 3 in this Court’s record does not reflect such

conversation between Amanda and Deputy Pizarro.

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call. Amanda received medical treatment from EMS on the scene, but she refused

further evaluation at a hospital or clinic. She told EMS she did not want to go to

the hospital.

Deputy Pizarro went inside the house. He testified he saw clutter and what

appeared to be blood droplets on the floor near the door. According to Deputy

Pizarro’s report, Amanda had bruising on her neck and the bruising was indicative

of strangulation. Deputy Pizarro arrested Szarf for occlusion assault and

possession of a controlled substance.3 He testified that his decision to arrest Szarf

for occlusion assault was based on his observation of Amanda’s injuries as well as

the injuries she described during the 911 call. He testified his conclusion that

Amanda had been strangled stemmed from the markings on her neck and her

statement to him that Szarf “wrapped a sock around her neck and choked her.”

Deputy Pizarro was able to identify Szarf on the scene based on Szarf’s name and

date of birth.

C. Deputy Martinez

Deputy Martinez of the Washington County Sheriff’s Office testified he was

dispatched to a disturbance reported by a female caller who stated that “she was

assaulted by her boyfriend, that she was hit, and she was bleeding from the nose.”

When he arrived at the residence, Deputy Martinez walked around to the back of

3

Szarf pleaded guilty to the drug charge, and that charge is not before this Court.

6

the house while Deputies Guerrero and Pizarro knocked on the front door.

Deputy Martinez saw Amanda sitting on the back porch. “It was cold and windy”

and she was not wearing shoes. Her face was bloody, particularly around her nose

area. Deputy Martinez and Amanda moved to the front yard, and when she saw

Szarf, Amanda began to cry.

Deputy Martinez testified that the injuries he observed were consistent with

“some kind of disturbance that led up to some type of an assault.” He also noticed

that the screen of Amanda’s phone was cracked.

D. Sergeant Guerrero

Sergeant Guerrero, a patrol sergeant with the Washington County Sheriff’s

Office, was dispatched to the scene on October 29, 2020 at approximately 9:27

a.m. When he arrived at the house, Sergeant Guerrero first made contact with

Szarf, who was compliant and “not showing a lot of emotion.” Szarf provided

Deputy Guerrero with his name and date of birth (March 2, 1982). Szarf told

Deputy Guerrero that “Amanda had taken something from him that made him

mad.”

Sergeant Guerrero also saw Amanda at the scene. He testified she was

covered in something “like sweat, water, or something as if she’d been thrown on

the ground or rolled around[.]” He also saw fresh blood on her face and coming

from her nose. She seemed upset, and she was crying. He saw markings on her

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cheek where Amanda stated she had been bitten, and slight markings around her

neck.

E. EMS Report

While at the scene, the officers photographed Amanda’s injuries and called

EMS to evaluate her. The photographs depict a bloody nose, a round red mark on

Amanda’s cheek, red marks on her neck, scratches on her neck, and red marks on

her upper chest. The EMS report notes that EMS was dispatched to evaluate a

woman “involved in an assault.” According to the report, Amanda told the EMS

crew that Szarf punched her with a closed fist, hit on her on the face, and choked

her. The EMS report notes that Amanda had “trauma to her nose,” “marks to her

neck and scratch marks to her upper chest.” It states the patient had “marks to her

neck and scratch marks to her upper chest.” The report further notes that Amanda

“denied transport to the ER for evaluation.” The photographs and the EMS report

were admitted into evidence as State Exhibits 20-25.

F. Amanda Hazelwood4

While Amanda consistently told the 911 call dispatcher, the responding

officers, and the evaluating EMS personnel that Szarf had assaulted her by

punching her with a closed fist and choking her, she recanted her testimony at trial.

At trial, Amanda testified she was the aggressor during the argument. She testified

4

Amanda Hazelwood went by the name Amanda Breitenbach when the assault

occurred. She was subpoenaed to appear in court.

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she threw things at Szarf, that he accidentally hit her while acting in self-defense,

and that he did not bite her, strangle her, or intentionally strike her.

Amanda testified that Szarf is her boyfriend and they have been together

three years. On October 29, 2020, they got into an argument and she began to yell

and throw kitchen utensils and plates at Szarf. She testified she was angry because

he had not slept in their bed the night before. Amanda explained that although

they argued sometimes, this was the first time she ever threw anything at Szarf and

he was shocked when it happened.

After Szarf and Amanda started to yell, she “kept getting in his face.” She

pushed him backwards until he was backed up against the wall. She testified that

he put his hands up to try to stop her and he accidentally 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 yelling at him. She

grabbed her phone and called her sister, who told Amanda to call 911.

Amanda told the 911 dispatcher that Szarf had attacked her. While still on

the phone with the 911 dispatcher, Szarf came outside the house and yelled at her,

but he did not know she was on the phone with 911. She testified she could not

recall anything happening while she was on the 911 call that would have made her

scream. She remained on the back porch until the authorities arrived.

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Amanda testified that Szarf did not try to strangle her with a sock, even

though she acknowledged that she previously told the responding officers at the

scene that he did. She testified that she claimed that Szarf had strangled her

because she was mad at Szarf and because she was scared and confused. She

testified she had not gotten much sleep the night before, and when she called 911,

she was “confused about the situation.” Amanda acknowledged, however, that on

the day of the incident, she told several people that he had tried to strangle her: the

three officers who responded to the dispatch and the two paramedics who

evaluated her.

Amanda also testified she did not recall having been bitten or telling the

officers that Szarf bit her. She did not think Szarf bit her on the face. She

conceded Szarf did strike her in the face, however. Amanda testified that she was

confused because of “the adrenaline of us arguing and then getting in the fight.”

She testified that she was embarrassed to have acted that way.

Amanda testified she called 911 to make the argument stop. She knew law

enforcement would come and Szarf would probably get in trouble. She did not

recall whether she told the officers that her injuries stemmed from an accident.

She conceded that after the incident, she did not tell anyone that her injuries were

the result of an accident. She denied that the wound on her face was caused by

Szarf trying to bite her. She did not recall being hit in the eye. According to

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Amanda, Szarf only hit her once the day of the 911 call and that was an accident.

She did not recall telling EMS that Szarf kicked her and testified that in fact, he did

not kick her. When the police heard Szarf tell Amanda he was sorry, she testified

it was because they had gotten into an argument.

Amanda testified that the redness and bruising below her collarbone were

caused by her suicide attempt the day before, when she put a curtain around her

neck and tied it to a sheet rack. She testified her suicide attempt did not work

because Szarf cut the curtain. She testified she has a history of suicide attempts.

She testified she told the officers that some of the marks they were photographing

resulted from self-inflicted injuries. Amanda also testified that some of the other

injuries depicted on the photographs were preexisting injuries from a fall in the

house a few days prior.

Amanda explained that her reaction on the day of the assault may have been

exaggerated because of “lack of sleep, partying all night.” She testified that the

night before the assault, she and Szarf drank and used methamphetamines together.

She testified she lied to the police about the assault because she was mad at Szarf

for not sleeping in bed with her. She wanted Szarf to get in trouble but did not

realize the amount of trouble he would get into. She testified she was scared she

would get in trouble with the police because she was the one who had started the

fight. Amanda testified that she and Szarf had argued before but she believed this

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fight was the first time she had gotten physically aggressive toward him. She

testified she had been the “first aggressor” in arguments with Szarf “too many

[times] to count.”

G. Crystal Conner

Crystal Conner (“Conner”) is a forensic nurse at Baylor Scott & White

Hospital in College Station, Texas. Forensic nurses take care of patients who have

been assaulted, “be it a sexual assault, abuse, domestic violence, strangulation.”

Conner has testified before as an expert in strangulation. She testified that it is

“very challenging” to take photos of neck injuries. If a sock is used to apply

pressure to someone’s neck, it is not always the case there will be visible evidence

of it, but it can still cause strangulation. She testified that bruising is not common

in strangulation. The neck is soft, and when you apply pressure to the neck, “you

can either occlude—there’s veins, arteries, and your trachea that are in your throat

and if you apply pressure, 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 as dizziness, loss of consciousness, tingling, things along those lines.

Applying pressure to the trachea causes discomfort. It can also cause . . . coughing

or difficulty breathing.”

Connor testified that memory loss or confusion may result after a

strangulation. Alcohol or drug usage also can affect memory or make someone

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confused. In situations of domestic violence, it is not surprising for the victims to

have a difficult time recalling events. It is also common for victims later to change

their version of events. She testified she did not interact with Szarf or Amanda or

review the evidence in this case.

Szarf did not testify. After arguments of counsel, the trial court found Szarf

guilty on Counts 1 and 2 as recited in the indictment. During the punishment

phase of trial, the State introduced Szarf’s prior felony DWI conviction as an

enhancement. Szarf pleaded guilty to the DWI enhancement, increasing the

punishment range for the charged offenses to first-degree felony for Count 1 and

second-degree felony for Count 2. The trial court sentenced Szarf to ten years’

incarceration at the Texas Department of Justice, Institutional Division on Count 1,

and five-years’ incarceration on Count 2, to run concurrently.

Discussion

A Standard of Review

We apply the legal sufficiency standard set out in Jackson v. Virginia, 443

U.S. 307 (1979) in determining whether the evidence is sufficient to support each

element of a criminal offense that the state must prove beyond a reasonable doubt.

See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). In evaluating

the legal sufficiency of the evidence, we defer to the factfinder’s credibility and

weight determinations. Id. at 894. “[W]e view the evidence in the light most

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favorable to the verdict and determine whether any rational trier of fact could have

found the essential elements of the offense beyond a reasonable doubt.” Matlock v.

State, 392 S.W.3d 662, 667 (Tex. Crim. App. 2013) (citing Jackson, 443 U.S. at

319; Brooks, 323 S.W.3d at 895). We consider both direct and circumstantial

evidence in our analysis. Laster v. State, 275 S.W.3d 512, 517–18 (Tex. Crim.

App. 2009); see Kuciemba v. State, 310 S.W.3d 460, 462 (Tex. Crim. App. 2010)

(“Circumstantial evidence is as probative as direct evidence in establishing the

guilt of an actor” and “the standard of review on appeal is the same for both direct

and circumstantial evidence cases.”) (quoting Guevara v. State, 152 S.W.3d 45, 49

(Tex. Crim. App. 2004)).

The legal-sufficiency standard does not blindly defer to the factfinder’s

credibility determinations, as “it allows for some consideration of whether the

[factfinder’s] credibility determinations were rational in light of the objective

evidence.” Walker v. State, Nos. PD-1429-14, PD-1430-14, 2016 WL 6092523, at

*15 (Tex. Crim. App. Oct. 19, 2016) (not designated for publication) (citing

Brooks, 323 S.W.3d at 907). We must presume the finder of fact resolved any

evidentiary conflicts in favor of the verdict and defer to that resolution. See

Jackson, 443 U.S. at 326; see also Morgan v. State, 501 S.W.3d 84, 89 (Tex. Crim.

App. 2016) (observing that reviewing court’s role on appeal “is restricted to

guarding against the rare occurrence when a fact finder does not act rationally”)

14

(quoting Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010)). If our

review reveals the evidence is legally insufficient, we must reverse the appellant’s

conviction. Costilla v. State, 650 S.W.3d 201, 212 (Tex. App.—Houston [1st

Dist.] 2021, no pet.). However, if there are two permissible views of the evidence,

“the fact finder’s choice between them cannot be clearly erroneous.” Evans v.

State, 202 S.W.3d 158, 163 (Tex. Crim. App. 2006).

B. Applicable Law

A Class A misdemeanor assault occurs when a person “intentionally,

knowingly, or recklessly causes bodily injury to another, including the person’s

spouse.” TEX. PENAL CODE § 22.01(a)(1), (b). A Class A misdemeanor assault

may be enhanced to a third-degree felony if the person commits the offense by

“intentionally, knowingly, or recklessly impeding the normal breathing or

circulation of the blood” of a family member5 “by applying pressure to the

person’s throat or neck or by blocking the person’s nose or mouth.” TEX. PENAL

CODE § 22.01(a)(1), (b)(2)(B). This offense is known as Occlusion Assault.

5

We use the term “family member” here to mean a “person whose relationship to or

association with the defendant is described by Section 71.0021(b), 71.003, or

71.005 of the Texas Family Code. See TEX. PENAL CODE § 22.01 (b)(2), (b-3);

see also TEX. FAMILY CODE § 71.0021(b) (dating relationships); id. § 71.003

(family members); id. § 71.005 (household members). The parties do not dispute

that Amanda was a household member and thus a “family member” for purposes

of the applicable statute.

15

Relevant to this appeal, Occlusion Assault may also be enhanced to a

second-degree felony if “it is shown on the trial of the offense that the defendant

has been previously convicted” of family violence. Id. § 22.01(a)(1), (b-3). In

such a case, evidence of a prior conviction is an element of the offense.

When proof of a prior conviction is a jurisdictional element of a crime, the

fact of the prior conviction, including the identity of the accused, must be proved

beyond a reasonable doubt. Wilmer v. State, 463 S.W.3d 194, 197 (Tex. App.—

Amarillo 2015, no pet.). To establish that the defendant was convicted of that prior

offense, the State must prove beyond a reasonable doubt that “(1) a prior

conviction exists and (2) the defendant is linked to that conviction.” Flowers v.

State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007). Texas law does not require

that a prior conviction be proven in any specific manner. Id. at 922. “Any type of

evidence, documentary or testimonial, might suffice.” Id.

C. Occlusion Assault

In his first two issues, Szarf challenges the legal sufficiency of the evidence

to support his conviction for Occlusion Assault. In his first issue, he challenges the

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

“actually impeded the normal breathing or the circulation of the blood of

Amanda.” In his second issue, Szarf argues the State failed to establish he was

previously convicted of a family violence offense, and thus there was insufficient

16

evidence of the enhancement necessary to elevate the charged assault to a second-

degree felony.

1. Evidence of Impediment

To establish Occlusion Assault, the State must prove beyond a reasonable

doubt that Szarf “impeded” Amanda’s normal breathing. McCall v. State, 635

S.W.3d 261, 267 (Tex. App.—Austin 2021, pet. ref’d) (citing TEX. PENAL CODE

§ 22.01(a)(1), (b)(2)(B)). The term “impeding,” as used in Section 22.01, is not

defined. In Marshall v. State, 479 S.W.3d 840, 844 (Tex. Crim. App. 2016), the

Court of Criminal Appeals 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 breathe, just not deeply. Id. The Court

held that because “the plain meaning of the statutory language indicates that any

impediment to normal breathing” is sufficient, evidence that the complainant was

unable to take deep breaths was sufficient to support the defendant’s conviction for

Occlusion Assault. Id. at 844–45. The Court held that the “jury did not need to

find that [the complainant] actually stopped breathing or that she was

unconscious.” Id. at 844. The Court concluded, “An impediment to normal

breathing does not necessarily prevent breathing altogether because an impediment

is merely a hindrance or obstruction.” Id. at 845. More recently, relying on

Marshall, the Court of Criminal Appeals held that:

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[A]ny hindrance, obstruction, or impediment for any amount of time

to one’s breathing or blood flow is per se a bodily injury and therefore

sufficient to satisfy family-violence assault. This is an exceptionally

low bar. It takes very little effort or force to slightly hinder another’s

breathing or circulation, and there is notably no injury or threat of

injury requirement aside from the impediment, however minimal.

Philmon v. State, 609 S.W.3d 532, 537 (Tex. Crim. App. 2020).

Szarf argues the State’s case “is completely lacking any testimony or other

evidence” to prove Amanda experienced “actual occlusion,” such as difficulty

breathing, coughing, or symptoms indicating blood flow impairment. Szarf

acknowledges that Amanda told the officers he punched her and choked her with a

sock, and that there was “some photographic evidence suggesting that she had

bruising and/or abrasions around her neck.” He argues, however, that the

photographic evidence does not prove Occlusion Assault because there must be

evidence that Szarf impeded Amanda’s breathing or the circulation of her blood.

Szarf asserts that a mere “excited utterance” by Amanda at the scene that Szarf

“choked” her without an explanation of the “effects she may have suffered as a

result” is not sufficient to prove Occlusion Assault.

The State responds that Amanda “consistently” told law enforcement and

medical personnel at the scene “that Appellant wrapped a sock around her neck

and choked her.” The officers testified that Amanda had red marks and scratches

on her neck, blood on her face, puffy eyes, and red markings on her cheek.

Photographs of these injuries were admitted into evidence. In addition to

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Amanda’s statements to police and EMS personnel, the 911 call, and the

photographs, the State points to Connor’s testimony that when you apply pressure

to the neck, you can occlude the veins, arteries, and trachea, and that applying

pressure to the veins or arteries decreases blood flow.

In reviewing Szarf’s first issue, we find Losoya v. State, No. 07-17-00061-

CR, 2018 WL 5094001 (Tex. App.—Amarillo Oct. 18, 2018, no pet.) (mem. op.,

not designated for publication) instructive. In Losoya, the appellant, having been

convicted of Occlusion Assault, contended there was insufficient evidence to

support the allegation that he impeded the complainant’s normal breathing or

circulation of blood. Id. at *1. The complainant was the appellant's mother.

During trial, the responding officer testified the complainant told him “she was

asleep in her bed ‘when she was awakened by [appellant] choking her and

punching her in the face and the head multiple times.’” Id. She was able to get

away and call 911. Id. The complainant “repeated to a fireman and a paramedic

that appellant awakened her by choking and punching her.” Id. And medical

records reflected she “told medical personnel that she had been choked or strangled

and had neck pain.” Id. An officer also “noticed redness on [her] neck, face, and

chest area.” Id. Like Amanda at trial, the complainant in Losoya testified she

could not remember the night of the assault, and she could not recall being choked.

Id.

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The court held that the complainant’s prior “statements that appellant

choked or strangled her, coupled with the redness on her neck and her neck pain,

readily allowed the jury to conclude [appellant impeded her breathing or

circulation of blood] by applying pressure to her neck or throat.” Id. at *3. “The

jury was free to believe the testimony of the police officer, the firefighter, and the

paramedic rather than what [the complainant] said during her testimony.” Id. The

court also noted the significance of testimony from a nurse offered as a

strangulation expert, who “describe[ed] the little pressure required to restrict or

impede breathing or blood flow,” and of the complainant’s 911 call, during which

she told the dispatcher that appellant had punched her and she was hurting. Id.

The court held:

[T]he jury readily could have concluded appellant used significant

force during his assault. Considering that evidence, along with the

testimony of the redness of her neck, and the pain that she described

to medical personnel, we find the jury's conclusion his choking or

strangling [the complainant] impeded her normal breathing or blood

circulation was a reasonable inference from the facts shown and not

mere speculation.

Id.

The opinion in Hennard v. State, No. 10-14-00324-CR, 2015 WL 5474796

(Tex. App.—Waco Sept. 17, 2015, no pet.) (mem. op., not designated for

publication) also is instructive. The complainant in Hennard told police that her

brother, the appellant, “slapped and choked her in the living room of their home,

20

and then the fight continued in the bedroom where he hit her again and stomped on

her.” Id. at *2. The officers testified that the complainant had redness on her neck

and that the redness was consistent with being strangled. Id. The complainant,

who said she did not want to appear at trial, testified she had taken prescription

medication the day of the assault and could not recall what happened that day. Id.

She testified she did not remember talking to the police or giving a statement. Id.

Like Amanda in the present trial, the complainant testified that the bruising on her

neck may have been self-inflicted, because she previously tried to choke herself.

Id. She testified that her brother had “never touched her and that he would not hurt

her.” Id. The State introduced photographs showing the injuries on complainant’s

neck. Id. at *3. The court of appeals stated the factfinder “is entitled to judge the

credibility of witnesses and can choose to believe all, some, or none of the

testimony presented by the parties.” Id. (citing Chambers v. State, 805 S.W.2d

459, 461 (Tex. Crim. App. 1991)). The court affirmed the trial court’s judgment

convicting the appellant of Occlusion Assault. Id.

Neither Losoya nor Hennard included a discussion of whether the

complainant’s breathing or circulation was actually impeded. To the extent the

factfinders inferred such a finding from the evidence, we note that evidence is

sufficient to support a conviction if “the inferences necessary to establish guilt are

reasonable based upon the cumulative force of all the evidence when considered in

21

the light most favorable to the verdict.” Edward v. State, 635 S.W.3d 649, 655–56

(Tex. Crim. App. 2021). Moreover, evidence that breathing or blood circulation

was impeded is an “exceptionally low bar” because “[i]t takes very little effort or

force to slightly hinder another’s breathing or circulation[.]” Philmon, 609 S.W.3d

at 537.

In the present case, the evidence supporting the “impeding” element of

Occlusion Assault included Amanda’s 911 call, the EMS report, photographs taken

on the day of the incident, testimony from the three responding officers reflecting

the injuries to Amanda’s neck, and Amanda’s statements to EMS and the

responding offers that Szarf choked her with a sock and hit her with a closed fist.

During the 911 call, Amanda tells the dispatcher she has a “bloody nose”

and a “few punches and bites” on her body. Amanda tells the dispatcher she is the

only one injured. She is heard crying and screaming at the end of the 911 call.

The trial court also heard testimony from Deputy Pizarro that Amanda told him

Szarf choked her with a sock, and he saw red marks on her neck. Amanda also

acknowledged at trial that she told the three responding officers and the two

paramedics who evaluated her that Szarf choked her with a sock. And the EMS

report reflects that Amanda told the paramedics Szarf punched her with a closed

first, hit her on the face, and choked her. The EMS report notes trauma to the nose,

22

marks to the neck, and scratch marks on Amanda’s upper chest. The photographs

also reflect injuries to Amanda’s nose, cheek, neck, and upper chest.

Separately, the trial court also heard testimony from the State’s strangulation

expert that if a sock is used to apply pressure to someone’s neck, there will not

always be visible evidence, but it can still cause strangulation. She testified that

the neck is soft and “you can either occlude—there’s veins, arteries, and your

trachea that are in your throat and if you apply pressure, 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 as dizziness, loss of consciousness,

tingling, things along those lines. Applying pressure to the trachea causes

discomfort. It can also cause . . . coughing or difficulty breathing.”

We hold that Amanda’s prior statements that Szarf choked her with a sock,

coupled with the redness and scratches on her neck and chest area, her statements

and demeanor during the 911 call, and Conner’s testimony concerning

strangulation together allowed the jury to conclude that Szarf impeded Amanda’s

breathing or circulation of blood by applying pressure to her neck or throat.

While Amanda recanted her testimony at trial and testified she was the aggressor

and that Szarf did not bite her, strangle her, or intentionally strike her, the trial

court was free to believe the testimony of the police officers and the reports of the

paramedics over Amanda’s trial testimony.

23

Viewing the record in the light most favorable to the trial court’s verdict, we

conclude the evidence is sufficient to support Szarf’s conviction for Occlusion

Assault. We overrule Szarf’s first issue.

2. Previous Assault Conviction

Count 1 of the indictment charged Szarf with Occlusion Assault. To

enhance the offense from a third-degree felony to a second-degree felony, the

indictment alleged that Szarf was previously convicted in 2006 of an offense

involving family violence. Szarf argues that the evidence is insufficient to prove

he was convicted in 2006 of family violence assault, which he argues is a required

element of Occlusion Assault as charged in the indictment. Given the

insufficiency of the evidence on this point, should we conclude there was sufficient

evidence of impediment to support Szarf’s conviction for Occlusion Assault under

his first issue, Szarf argues we should modify the final judgment to reflect a

conviction for Occlusion Assault as a third-degree, rather than second-degree,

felony, “affirm the conviction as modified, reverse the punishment, and remand the

case to the trial court to conduct a new punishment hearing consistent with the

range of punishment for the applicable lower-level offense.”6 The State responds

that State Exhibits 9 and 10 sufficiently link Szarf with a 2006 family violence

6

Szarf was sentenced to ten years’ imprisonment for Count 1. The imposed

sentence falls within the maximum punishment range for a third-degree felony.

TEX. PENAL CODE § 12.34.

24

assault conviction through his unique name, date of birth, gender, race, cause

number, court number, and offense.

To establish that a defendant has been convicted of a prior offense, the State

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

the defendant is linked to that conviction.” Flowers, 220 S.W.3d at 921. The trial

court must consider whether “the totality of the evidence establishes beyond a

reasonable doubt” the link between the defendant and the previous conviction.

Wood v. State, 486 S.W.3d 583, 589 (Tex. Crim. App. 2016). In Flowers v. State,

220 S.W.3d 919 (Tex. Crim. App. 2007), the Texas Court of Criminal Appeals

explained that there is no specific document that is required to link a defendant to a

prior conviction:

There is no “best evidence” rule in Texas that requires that the fact of

a prior conviction be proven with any document, much less any

specific document. While evidence of a certified copy of a final

judgment and sentence may be a preferred and convenient means, the

State may prove both of these elements in a number of different ways,

including (1) the defendant’s admission or stipulation, (2) testimony

by a person who was present when the person was convicted of the

specified crime and can identify the defendant as that person, or (3)

documentary proof (such as a judgment) that contains sufficient

information to establish both the existence of a prior conviction and

the defendant’s identity as the person convicted.

Id. at 921–22 (internal citations omitted). The Court in Flowers likened the

evidence required to link the two elements to the pieces of a jigsaw puzzle: “The

pieces standing alone usually have little meaning. However, when the pieces are

25

fitted together, they usually form the picture of the person who committed that

alleged prior conviction or convictions.” Id. (citing Human v. State, 749 S.W.2d

832, 835–36 (Tex. Crim. App. 1988)). That the defendant is the same person

identified in the prior convictions may be established “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 to 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

evidence to prove the defendant is the same person named in the prior

convictions.”).

The State alleged in its indictment that Szarf previously was convicted of

family violence assault on October 11, 2006 in Cause No. 1407642 in County

Criminal Court at Law No. 11 of Harris County, Texas. The trial court admitted a

certified copy of the 2006 conviction of an Evan Michael Szarf into evidence as

State Exhibit 10 (the “2006 Offense”). State Exhibit 10 states that a defendant

named Evan Michael Szarf pleaded guilty on October 11, 2006 to “assault – family

member.” A certified copy of the charging instrument for the 2006 Offense, which

occurred on October 4, 2006, was offered into evidence as State Exhibit 9. State

Exhibit 9 states the assault was committed by Evan Michael Szarf, a white male

with a date of birth of March 2, 1982, against a woman with whom he had a dating

26

relationship, by “strangling the complain[an]t with his hand” in Harris County,

Texas. State Exhibits 9 and 10 involve the same defendant, cause number, offense,

and court.

During the trial, Sergeant Guerrero testified that when he talked to Szarf on

the day of the incident, Szarf told him his birthday was March 2, 1982. That is the

same date of birth reflected in State Exhibit 9. Deputy Pizarro also testified that he

was able to identify Szarf at the scene based on his name and date of birth, both of

which match the name and date of birth on State Exhibit 9.

Szarf argues that the State did not satisfy its burden to prove beyond a

reasonable doubt that a prior conviction exists and that he is connected to that prior

conviction. He asserts that “[a] mere prior judgment bearing the same name as the

defendant on trial is insufficient to show he was the same person actually

convicted.”7 We agree that a name—or even a mere name and birthdate—is

insufficient proof. “Clearly, we must not depend only on a name or even a name

and a birth date” to link a defendant to a prior conviction. Flowers, 220 S.W.3d at

925 (Johnson, J., concurring).8

7

Szarf concedes that if State Exhibit 10 “was properly proven beyond a reasonable

doubt to be connected to [him], it would indeed suffice to enhance the indicted

allegations from a third-degree to a second-degree felony.”

8

See also Strehl v. State, 486 S.W.3d 110, 114 (Tex. App.—Texarkana 2016, no

pet.) (“Evidence that the defendant merely has the same name as the person

previously convicted is not sufficient to satisfy the prosecution’s burden.”).

27

The State did not proffer testimony from an expert fingerprint analyst to

compare and opine on the prints present on State Exhibit 10.9 Nor did it offer

testimony from a person who was present when Szarf was convicted of the prior

offense and could identify Szarf as that person. There are also no photographs

attached to State Exhibits 9 and 10, and Szarf did not stipulate to any evidence of

connection or provide any admissions concerning the 2006 Offense. The State

contends, however, that it offered more than a mere name and date of birth to

satisfy its burden because in addition to State Exhibits 9 and 10, it also proffered

evidence of a similar offense committed by Szarf in a nearby county in 2007. The

State points to State Exhibit 7, a 2012 Probation Violation Report that pertains to

an “Evan Michael Szarf” who was granted probation in 2010 for a 2007 charge of

Assault-Family Violence.10 The Probation Violation Report includes a photograph

of Evan Michael Szarf.11 The State notes that Szarf does not contend in his brief

and did not contend at trial that he was not the Evan Michael Szarf identified in

State Exhibit 7. While that may be the case, we agree with Szarf that State Exhibit

9

There is a thumbprint on State Exhibit 10, but the thumbprint is illegible.

10

State Exhibits 5, 6, 7, and 8 pertain to the enhancement allegation in Count 2 of

the indictment and are not related to the enhancement allegations recited in Count

1. The case reflected in State Exhibit 7 is State of Texas v. Evan Michael Szarf,

Cause No. 07-DCR-048432, in the 240th Judicial District Court of Fort Bend

County, Texas. State Exhibits 5, 6, and 8 also pertain to that case. State Exhibit 5

is a judgment, State Exhibit 6 is a motion for adjudication of guilt, and State

Exhibit 8 is the judgment adjudicating guilt.

11

Szarf concedes that State Exhibit 7 contains his photograph.

28

7 is unrelated to the 2006 Offense alleged in the indictment and alone is

insufficient to establish the requisite connection between Szarf and the 2006

Offense. See Zimmer v. State, 989 S.W.2d 48, 52 (Tex. App.—San Antonio 1998,

pet. ref’d) (holding that State, in attempting to prove two prior DWI convictions,

successfully proved one prior conviction, but that conviction did not link defendant

to second DWI conviction of person with same name).

Nonetheless, we find that based on Szarf’s unique name, the listing of his

correct date of birth on State Exhibit 9, the identification of Szarf in the same

exhibit as a white male, the type of assault committed, and the nearby county in

which the prior assault was committed, the trial court could have found there was

sufficient evidence to prove the prior conviction existed and that Szarf, a person

with the same unique name, date of birth, gender, and race as the defendant in the

2006 Offense, was linked to the prior conviction.

The State asks this Court “to judicially notice that Washington County is

within about 80 miles of Harris County.” We do so.12 See Thacker v. State, No.

08-18-00085-CR, 2020 WL 1303555 (Tex. App.—El Paso Mar. 19, 2020, pet.

ref’d) (not designated for publication). In Thacker v. State, the State proffered

evidence that the appellant’s full name and birth date matched that of the person

12

We may take judicial notice of facts that are “notorious, well known, or easily

ascertainable,” such as the distance between two geographical locations. Benton v.

State, 336 S.W.3d 355, 359 n.8 (Tex. App.—Texarkana 2011, pet. ref’d) (citations

omitted).

29

identified in the prior conviction. Id. at *12. The court of appeals found it

“significant” that the prior conviction came from Alamance County and the

appellant had lived in Burlington, North Carolina, part of which is in Alamance

County. The court stated, “We find it unlikely that there would be more than one

‘William Geoffrey Thacker’ with the same birth date, residing in or near Alamance

County, who could have been the subject of the prior conviction.” Id.; see also

Brown v. State, No. 06-19-00082-CR, 2019 WL 6334707, at *5 (Tex. App.—

Texarkana Nov. 27, 2019) (mem. op., not designated for publication) (observing

that defendant was linked to prior conviction “by name, birth date, type of offense,

and county of offense”), rev’d on other grounds, 618 S.W.3d 352 (Tex. Crim. App.

2021).

Viewing the evidence in the light most favorable to the State, we conclude

sufficient evidence was presented linking Szarf to the prior crime of family

violence assault. We hold that a rational trier of fact could have found beyond a

reasonable doubt that (1) a prior conviction for family violence assault in Harris

County Cause No. 1407642 existed and (2) legally sufficient evidence linked Szarf

to that conviction. See Orsag v. State, 312 S.W.3d 105, 115 (Tex. App.–Houston

[14th Dist.] 2010, pet. ref’d) (factfinder considers “totality of the evidence” to

determine whether State proved prior conviction beyond reasonable doubt).

We overrule Szarf’s second issue.

30

3. Reforming the Judgment13

Szarf asserts in his third and fourth issue that the trial court’s final judgment

incorrectly reflects the classification of the offenses for which he was charged. In

Count 1, Szarf was charged with Occlusion Assault with Prior Offense, pursuant to

Section 22.01(b-3) of the Penal Code, a second-degree felony. In Count 2, he was

charged with Assault Family Member with Previous Conviction, pursuant to

Section 22.01(b), a third-degree felony. The final judgments, however, recite the

degrees of the crimes as first degree for Count 1, and second degree for Count 2.

The State concedes that the final judgments are incorrect with respect to

both counts and should be reformed. The State concedes the final judgment for the

Occlusion Assault conviction under Count 1 should be reformed to reflect the

offense is a second-degree felony and the final judgment for Assault Family

Member under Count 2 should be reformed to reflect the offense is a third-degree

felony.

A review of the final judgments indicates Appellant is correct about the

mistaken identification of the degree of the offenses. We thus sustain Szarf’s third

and fourth issues. Courts of appeals have the power to reform and correct

judgments. Harris v. State, 670 S.W.2d 284, 285 (Tex. App.—Houston [1st Dist.]

1983, no pet.). Pursuant to such authority, we reform the final judgments of the

13

The two judgments bear the same cause number. Therefore, we refer to them

collectively.

31

trial court by changing the listed degree for Occlusion Assault under Count 1 to

second-degree, and for Assault Family Member under Count 2 to third-degree.

Conclusion

We affirm the trial court’s judgment, as reformed.

Veronica Rivas-Molloy

Justice

Panel consists of Justices Goodman, Landau, and Rivas-Molloy.

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

32