Diruzzo v. State
549 S.W.3d 301
| Tex. App. | 2018Background
- Joseph Andrew DiRuzzo (a/k/a Joe Delarosa), a licensed chiropractor who operated a private association called SSCMB, was indicted on 16 counts alleging he practiced medicine without a license between April and October 2013 by withdrawing blood and injecting "purported" stem cells into two victims.
- SSCMB members signed contracts disclaiming medical treatment, asserting private-member status, confidentiality, and waiver of civil remedies; members paid fees and compensation for procedures.
- Victims (including Nelson Janssen) testified they sought physical improvement, paid for procedures, were not told DiRuzzo was a physician, and believed treatments helped; several other members testified similarly.
- Jury convicted DiRuzzo on all 16 counts under Tex. Occ. Code §165.152 (third-degree felony); co-defendant McMahan was acquitted on all counts; punishment: four years' imprisonment and $1,500 fine per count, concurrent.
- On appeal DiRuzzo argued: (1) lack of subject-matter jurisdiction because indictments charged misdemeanors; (2) convictions violated freedom of association/choice/privacy; (3) evidentiary insufficiency to prove "practicing medicine"; and (4) ineffective assistance of counsel.
Issues
| Issue | Plaintiff's Argument (DiRuzzo) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Subject-matter jurisdiction: whether indictment alleged felonies | §165.152 applies only to licensed physicians; indictment therefore charged only misdemeanors (or was otherwise defective) | §165.152’s plain text covers any person who practices medicine in violation of the Act, including unlicensed practitioners; indictment alleges §165.152 felonies | Court: §165.152 applies to any person; indictment sufficiently alleged third-degree felonies; overrules issue; judgments modified to cite §§155.001 and 165.152 |
| Constitutional challenge: First/14th Amendment (association, choice, privacy) | SSCMB was a private-membership association; members freely contracted and had rights to associate and choose treatment protected by freedom of association and privacy | State: regulation of medical practice is a valid exercise of the police power; Dent and related precedent permit licensing/regulation that protects public health | Court: licensing/regulation does not unconstitutionally infringe rights here; prosecution targeted unlawful practice of medicine, not protected advocacy or association; issue overruled |
| Evidentiary sufficiency: did actions constitute "practicing medicine" | Drawing blood and giving injections are not per se practicing medicine; Board does not regulate phlebotomists or some injection technicians; evidence insufficient | Statutory definition covers diagnosis or treatment for disease when performed for compensation; victims sought treatment for diabetes/cancer and paid for procedures | Court: Evidence was sufficient—procedures were offered for treatment and charged for, satisfying statutory definition; issue overruled |
| Ineffective assistance of counsel | Trial counsel failed to develop record/witnesses to support First Amendment intimate/expressive association defenses | No developed record showing strategic choices were deficient; appellant didn’t identify specific omitted questions/witnesses; claim inadequately developed on direct appeal | Court: Presumption of reasonable strategy not overcome; ineffective-assistance claim denied (may be revisited in habeas) |
Key Cases Cited
- Crosstex Energy Servs., L.P. v. Pro Plus, Inc., 430 S.W.3d 384 (Tex. 2014) (statutory construction principles; give effect to Legislature's intent)
- Sanchez v. State, 995 S.W.2d 677 (Tex. Crim. App. 1999) (context and grammar in construing statutes)
- Dent v. West Virginia, 129 U.S. 114 (1889) (state power to require licensing of physicians for protection of public health)
- Jackson v. Virginia, 443 U.S. 307 (1979) (standard for sufficiency of the evidence)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective-assistance standard)
- Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) (evaluating sufficiency under hypothetically correct jury charge)
- Teal v. State, 230 S.W.3d 172 (Tex. Crim. App. 2007) (waiver principles for indictment defects)
- Roberts v. United States Jaycees, 468 U.S. 609 (1984) (analysis of intimate and expressive association)