Agripino v. State

• Citation: 217 S.W.3d 707
• Decision Date: 15 February 2007
• Docket Number: No. 08-05-00079-CR.,08-05-00079-CR.
• Parties: Dolores AGRIPINO, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas

217 S.W.3d 707

Dolores AGRIPINO, Appellant, v. The STATE of Texas, Appellee.

No. 08-05-00079-CR.

Court of Appeals of Texas, El Paso.

February 15, 2007.

M. Clara Hernandez, El Paso County Public Defender, San Antonio, for Appellant.

Jaime E. Esparza, Dist. Atty., El Paso, for State.

Before CHEW, C.J., McCLURE, and CARR, JJ.

OPINION

KENNETH R. CARR, Justice.

Dolores Agripino appeals her convictions for Practicing Medicine Without a License and Aggravated Assault. Following a jury trial, the Appellant was convicted of sixteen counts of Practicing Medicine Without a License ("PMWL") and eleven counts of Aggravated Assault. She was sentenced to serve ten years in prison and fined $10,000 on each of the PMWL counts. She was sentenced to serve twenty years in prison and fined $10,000 on each of the Aggravated Assault counts. She appeals both sets of convictions.

FACTUAL SUMMARY

In 2001, Dolores (aka "Irma") Agripino (herein referred to as the Appellant) recruited a large group of her co-workers to take advantage of her low-cost collagen injections. From her home in El Paso, the Appellant and one accomplice injected mineral oil into the bodies of over twenty women, primarily in the breasts and/or the buttocks.

Many of the women were invited to consultation or demonstration meetings in residential homes in El Paso. For ten or fifteen dollars, those who has been recruited by the Appellant or through word of mouth in the factory where she worked were told about the benefits of "collagen with elasticity" injections and how the Appellant and her partner could provide them for less than what a specialist physician would charge. During the presentation, the Appellant and Penelope wore nurses' uniforms and told the audience they worked for doctors. Price quotes were provided, depending on what body part the customer wanted injected and how many separate injections were needed. Once a woman expressed interest, she was told to bring the full quoted amount, in cash, for her first injection. The women met at the Appellant's home, where a waiting area was set up in the living room on the main floor. Each woman waited for her name to be called before going to an upstairs bedroom where the injections were given. Initially, the Appellant acted as Penelope's assistant, filing and preparing the syringes. Eventually, she began injecting the women herself. The substance was stored in clear, unlabeled, "baby bottles" and carried in a zippered lunch container. The substance was described as a clear or transparent liquid. After the injections, the witnesses were told to massage the injected area, because the liquid would only work if it was distributed properly. When she was confronted later with complaints about lumps developing at the injection sites, the Appellant insisted the women were not doing the massages correctly. She instructed the women to rub the areas harder and continued administering the injections. Within months of the injections, many women developed hard lumps at or near the injection sites, discoloration of the skin, and severe pain. Many have been forced to resort to multiple surgeries to remove the lumps of oil and have been left scared and disfigured.

The Appellant brings five issues in this appeal. In Issues One and Two, she asserts that the evidence was both legally and factually insufficient to support her PMWL convictions. In Issues Three and Four, she asserts that the evidence was also legally and factually insufficient to maintain her Aggravated Assault convictions. In Issue Five, she argues that the trial court erred by denying her motion to quash the indictment. Finding no reversible error, we affirm.

DISCUSSION

Before we address the sufficiency of the evidence presented at trial, we will address the Appellant's contention that the trial court committed reversible error by denying her motion to quash the indictment. She argues that the indictment failed to give her sufficient notice of the charges against her and that she was therefore denied an opportunity to prepare an adequate defense.

The sufficiency of an indictment is a question of law. State v. Moff, 154 S.W.3d 599, 601 (Tex.Crim.App.2004); State v. Meadows, 170 S.W.3d 617, 619 (Tex.App.-El Paso 2005, no pet.). When the resolution of a question of law does not turn on an evaluation of witness credibility and demeanor, the trial court is not in an appreciably better position to make the determination than is an appellate court. Moff, 154 S.W.3d at 601; see also Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). Thus, we review the sufficiency of an indictment de novo. Id.; Meadows, 170 S.W.3d at 619.

The accused is guaranteed the right to be informed of the nature and cause of the accusation against him in all criminal actions. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; Curry v. State, 30 S.W.3d 394, 398 (Tex.Crim.App.2000). This constitutional mandate requires that the charging instrument convey adequate notice from which the accused may prepare his defense. Moff, 154 S.W.3d at 601. A motion to quash should be granted only where the language concerning the defendant's conduct is so vague or indefinite as to deny him effective notice of the acts which he is alleged to have committed. State v. Seibert, 156 S.W.3d 32, 35 (Tex. App.-Dallas 2004, no pet.). To determine whether it sufficiently charges an offense, the indictment will be read as a whole. Dennis v. State, 647 S.W.2d 275, 279 (Tex. Crim.App.1983).

A defect of form does not render an indictment insufficient unless the defect "prejudice[s] the substantial rights of the defendant." TEX. CODE CRIM. PROC. ANN. § 21.19 (Vernon 1989); Olurebi v. State, 870 S.W.2d 58, 61 (Tex.Crim.App.1994). To determine whether the defendant had notice adequate to prepare his defense, we must first determine whether the charging instrument failed to provide all the requisites of "notice." Olurebi, 870 S.W.2d at 61. If the indictment gave sufficient notice, our inquiry ends. Id. If it did not, we must ask whether, in the context of this case, the deficiency had an impact on the defendant's ability to prepare a defense and how great any such impact was. Id. at 61-62.

The Appellant contends that there were two defects in this indictment. First, she argues that the PMWL charge failed to give her proper notice, because there are multiple ways by which one can "practice medicine" under sec. 151.002(a)(13) of the Texas Occupations Code, TEX. OCC. CODE ANN. § 151.002(a)(13), and the indictment did not specify which one was being alleged. Second, she argues that the charges for aggravated assault did not specify what act or acts constituted recklessness. We will address each argument in turn.

In charging the Appellant with PMWL, the indictment alleged that she "did then and there, intentionally and knowingly practice medicine without a license or permit, thereby, causing physical or psychological harm to [complainant's name] by injecting [complainant's name]'s body with mineral oil."

The indictment described the offense by tracking the statutory language in sec. 165.153(a) of the Texas Occupations Code. TEX. OCC. CODE ANN. § 165.153(a) (Vernon 2004). Generally, an indictment which tracks the statutory language is sufficient to provide notice. Curry, 30 S.W.3d at 398. However, tracking the language of a statute may not be sufficient, if the statutory language is not completely descriptive of the offense. Id. When a statute provides more than one means of commission, the indictment must identify which of the statutory means it addresses. Id. On the other hand, the State is generally not required to plead evidentiary matters. Id.

According to the statutory definition of the term "practicing medicine," this offense can be committed in several different ways: "diagnosis, treatment, or offer to treat ... or the attempt to effect cures ...." TEX. OCC. CODE ANN. § 151.002(a)(13) (Vernon 2004 & Supp.2006). None of these terms was listed on the face of the indictment. Read as a whole, however, the indictment does specify that the Appellant was charged specifically with the act of injecting the complainants with mineral oil. Injecting a substance into the human body is reasonably regarded as more than an "offer to treat" or a "diagnosis," and there is nothing in the indictment as a whole to indicate that the Appellant was charged with attempting to cure a disease or ailment. The indictment provided adequate notice to the Appellant that she was being charged for the mineral oil "treatments" as provided in the definition of "practicing medicine." See id.

The Appellant also argues that the State failed to allege what act or acts constituted recklessness regarding the aggravated assault charge. A person commits the offense of assault if the person "intentionally, knowingly, or recklessly causes bodily injury to another . . . ." TEX. PENAL CODE ANN. § 22.01(a)(1) (Vernon 2003 & Supp. 2006). When the State alleges that the defendant acted recklessly in the commission of an offense, the indictment must also allege the act or acts relied upon to constitute recklessness, with reasonable certainty. TEX. CODE CRIM. PROC. ANN. art. 21.15 (Vernon 1989). An indictment is insufficient if it merely alleges that the accused acted recklessly in committing the offense. Id. The indictment must allege with reasonable certainty the act or acts relied upon to constitute recklessness, so as to inform the accused of the nature of the reckless act of which he is accused. Id. Again, however, the State is not required to plead additional evidentiary facts. Curry, 30 S.W.3d at 398; State v. Emanuel, 873 S.W.2d 108, 108-109 (Tex. App.-Dallas 1994, no pet.).

The aggravated assault indictment alleged that "Defendant ... did then and there recklessly cause serious bodily injury to [complainant's name], to wit: by injecting mineral oil, instead of collagen, into [complainant's name] without her consent ...." This indictment is...