Weyandt v State

• Decision Date: 07 December 2000
• Citation: 35 S.W.3d 144
• Parties: <!--35 S.W.3d 144 (Tex.App.-Houston 2000) LINDA J. WEYANDT, Appellant v. THE STATE OF TEXAS, Appellee NO. 14-98-00194-CR In The Fourteenth Court of Appeals Fourteenth Court of Appeals
• Court: Texas Court of Appeals

Page 144

35 S.W.3d 144 (Tex.App.-Houston [14th Dist.] 2000)

LINDA J. WEYANDT, Appellant v THE STATE OF TEXAS, Appellee

NO. 14-98-00194-CR

In The Fourteenth Court of Appeals Fourteenth Court of Appeals

December 7, 2000.

Rehearing Overruled January 18, 2001.

On Appeal from the County Criminal Court at Law No. 9 Harris County, Texas Trial Court Cause No. 97- 39220

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Panel consists of Justices Robertson, Sears, and Lee.^*

OPINION

Sears Justice

A jury found appellant, Linda J. Weyandt, guilty of practicing medicine without a license. See TEX. REV. CIV. STAT. ANN. art. 4495, §§ 1.03( a)( 12) & 3.07( a) (Vernon Supp. 1999) (current version at TEX. OCCUP. CODE ANN. §§ 151.002( a)( 13) & 165.152 (Vernon Pamph. 2000)). The trial court sentenced her to one year in jail, probated for two years; 100 hours of community service; 21 days in the Harris County Jail as a condition of probation; and ordered her to post a sign at any place of employment stating she is not a licensed physician. In five points of error, appellant argues the conviction should be reversed because (1) the evidence is legally insufficient to support the verdict; (2) the evidence is factually insufficient to support the verdict; (3) the trial court erred by submitting evidence of other crimes, wrongs or acts in violation of Evidence Rules 403 and 404; (4) the statute preventing practicing medicine without a license, as applied to appellant, is unconstitutionally vague; and (5) appellant's constitutional and statutory rights to remain silent were violated when the prosecutor called her to the stand.

Factual Background

Appellant worked as a nurse anesthetist at the Veteran's Administration Hospital in Houston and also ran a private nursing clinic. At her clinic, Associated Hypnotherapy and Pain Management Services of Texas, appellant administered hypnotherapy and other pain management techniques to alleviate her patients' pain. The clinic's Yellow Pages advertisement, which was listed in the hypnotherapists' section, identified appellant as "Dr. Linda J. Weyandt."

Although appellant graduated in 1983 from Universidad del Noreste Medical School in Tampico, Tamaulipas, Mexico, with a doctor of medicine degree, she is not licensed to practice medicine in Texas. She is, however, a Certified Registered Nurse Anesthetist (CRNA), an advanced nurse practitioner, and a certified hypnotherapist.

Elizabeth G. Mihalco, an undercover Houston police officer, visited appellant's clinic claiming she had an injured shoulder. Mihalco made an appointment to see appellant, explaining the problem with her shoulder. When she visited appellant's office, she carried a concealed transmitter in her purse. A tape recording of the ensuing conversations was made by another officer waiting in a vehicle parked outside.

Appellant's name was listed as "Dr. Linda Weyandt" on the door to her clinic, which resembled a typical doctor's office, and hanging on the wall of the reception area were several certificates issued to "Linda J. Weyandt, M. D." When Mihalco entered the clinic, appellant introduced herself as "Doctor Weyandt," and during the initial interview, explained that she had "been in anesthesia" for almost twenty years. When Mihalco spoke of a previous experience with an "anesthesiologist," utilizing the term for a medical doctor specializing in anesthesia, appellant responded that "she would not have done it that way," but did not clarify that she was not an anesthesiologist.

Appellant discussed with Mihalco some possible causes of her shoulder pain and examined Mihalco's shoulder and manipulated her arm. Appellant attached to Mihalco's shoulder and wrist the wires from a peripheral nerve stimulator. Anesthesiologist Carmen Maymi testified that peripheral nerve stimulators are designed to test nerve conduction on patients who are under general anesthesia, in order to determine when their muscles are sufficiently paralyzed as to permit intubation through the trachea. Maymi was unaware of any therapeutic use for the device. Appellant turned on the peripheral nerve stimulator, and muscles in Mihalco's wrist, arm, and shoulder began to move and twitch. After a moment, appellant increased the electrical current until Mihalco directed her to stop after experiencing pain. Appellant complied, and took Mihalco into another room where she unsuccessfully attempted to hypnotize Mihalco. As the visit was winding down, she suggested Mihalco drink a herbal tea called "Cat's Claw" and charged her $75 for the visit.

As a result of Mihalco's visit, police investigators obtained a search warrant to search appellant's offices, and found several containers of drugs in a cabinet in the treatment room, including injectable lidocaine and lidocaine ointment.

Denise Meyer, Director of the Enforcement Division of the Texas State Board of Medical Examiners, testified that appellant is not licensed to practice medicine in Texas. She also stated that if someone holds an M. D. degree, they are a doctor of medicine, but not a physician until licensed by the Board. Additionally, she noted a person holding an M. D. degree may call themselves doctor and doctor of medicine.

Legal Sufficiency

In her second point of error, appellant argues the evidence is legally insufficient to support the jury's verdict. We review legal sufficiency challenges to determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The standard is the same in both direct and circumstantial evidence cases. See Geesa v. State, 820 S.W.2d 154, 162 (Tex. Crim. App. 1991) overruled on other grounds, Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000). For the purpose of applying the Jackson v. Virginia test for legal sufficiency, the "essential elements" of the offense are those required by the "hypothetically correct jury charge for the case." Malik, 953 S.W.2d at 240. The hypothetically correct jury charge is that which "accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id. We find Malik applies in this case because the jury charge did not precisely track the allegations in the indictment.

Appellant was charged by complaint and information with the offense of practicing medicine without a license.¹ See TEX. REV. CIV. STAT. ANN. art. 4495b, § 3.07( a). "Practicing medicine" is defined as:

(12) "Practicing medicine." A person shall be considered to be practicing medicine within this Act:

(A) who shall publicly profess to be a physician or surgeon and shall diagnose, treat, or offer to treat any disease or disorder, mental or physical or any physical deformity or injury by any system or method or to effect cures thereof; or

(B) who shall diagnose, treat, or offer to treat any disease or disorder, mental or physical, or any physical deformity or injury by any system or method and to effect cures thereof and charge therefor, directly or indirectly, money or other compensation.

TEX. REV. CIV. STAT. ANN. art. 4495b, § 1.03( a)( 12).

The information alleged appellant publicly professed herself to be a physician by misusing the initials, "Dr." and "M. D." and by representing herself as an "M. D." to officer Mihalco. The jury charge was different from the information. The jury charge substituted the word "in" for "and" and thereby effectively required a finding that appellant utilized the initials "Dr." and "M. D." specifically to induce Mihalco to receive medical treatment.²

The hypothetically correct jury charge would have allowed a finding that appellant publicly professed to be a physician by the alternative means of "using the initials 'Dr. ' or 'M. D. ' o r by representing herself as a physician to a patient . . . to induce her to receive medical treatment." To require the State to prove appellant publicly professed to be a physician by using the initials Dr. and M. D. and by representing herself as a physician to Mihalco would unnecessarily increase the State's burden of proof and would not adequately describe the offense appellant was charged with. The remainder of the unlicenced practice of medicine statute was satisfied by the requirement that the jury find appellant diagnosed a disorder (a "muscle injury") and provided treatment (" shock treatment") to Mihalco.

The standard formulated by Malik "ensures that a judgment of acquittal is reserved for those situations in which there is an actual failure in the State's proof of the crime rather than a mere error in the jury charge submitted." 953 S.W.2d at 240; see Mijores v. State, 11 S.W.3d 253, 256 (Tex. App. Houston [14th Dist.] 1999, no pet.).

Before discussing whether appellant practiced medicine without a license, we must determine what acts she was permitted to perform as a CRNA. The requirement that a person must be licensed to practice medicine does not apply to "registered or professional nurses and licensed vocational nurses registered or licensed under the laws of this state who confine their practice strictly within the provisions of such applicable licensing Acts and under the laws of this state . . . ." TEX. REV. CIV. STAT. ANN. art. 4495b, § 3.06( a)( 4). Under the Board of Nurse Examiners's rules, a CRNA may select, obtain, and administer anesthesia and anesthesia- related services in certain facilities in accordance with a physician's order if the facility policy or medical staff bylaws permit it, as follows:

(a) In a licensed hospital or ambulatory surgical...