Ex Parte Emad Mikhail Tewfik Bishai

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-21-00158-CR
NO. 09-21-00159-CR
NO. 09-21-00160-CR
NO. 09-21-00161-CR
NO. 09-21-00162-CR
NO. 09-21-00163-CR
__________________
EX PARTE EMAD MIKHAIL TEWFIK BISHAI
__________________________________________________________________
On Appeal from the 359th District Court
Montgomery County, Texas
Trial Cause Nos. 19-11-14893-CR, 19-11-14894-CR,
19-11-14896-CR, 19-11-14902-CR, 19-11-14905-CR & 20-09-11172-CR
__________________________________________________________________
MEMORANDUM OPINION
Appellant Emad Mikhail Tewfik Bishai appeals the trial court’s denial of
Bishai’s pretrial application for writ of habeas corpus in trial cause numbers 19-11-
14893-CR (appellate cause number 09-21-00158-CR), 19-11-14894-CR (appellate
cause number 09-21-00159-CR), 09-11-14896-CR (appellate cause number 09-21-
00160-CR), 19-11-14902-CR (appellate cause number 09-21-00161-CR), 09-19-11-
1
14905-CR (appellate cause number 09-21-00162-CR), and 20-09-11172-CR
(appellate cause number 09-21-00163-CR). We affirm.
Background
Bishai was charged by ten indictments with crimes related to his medical
practice. The trial court signed an order consolidating eight of the ten indictments
for trial. Bishai filed a pretrial application for a writ of habeas corpus in six of the
ten trial causes challenging the facial validity of the underlying statutes, sections
165.152 and 164.053 of the Texas Occupations Code. The four pending cases that
are not subject to Bishai’s facial challenge are filed under cause numbers 19-11-
14895, 19-11-14898, 19-11-14900, and 19-11-14904, and, according to Bishai,
those indictments charge him with violating section 481.128 of the Texas Health and
Safety Code.
Each of the challenged indictments contains a single count and charges Bishai
with violating section 165.152 of the Texas Occupations Code. Section 165.152(a)
states: “[a] person commits an offense if the person practices medicine in this state
in violation of [Subtitle B of Title 3 of the Occupations Code, commonly known as
the Medical Practice Act].” Tex. Occ. Code Ann. § 165.152(a). Violation of section
165.152 is punishable by up to ten years in the penitentiary (a third-degree felony)
and final conviction also results in the forfeiture of a physician’s medical license.
See id. § 165.152(c), (d); see also Tex. Penal Code Ann. § 12.34(a). Each of the six
2
indictments challenged by Bishai relies on provisions in section 164.053 of the
Texas Occupations Code to set out the manner and means of the alleged section
165.152 violations. Section 164.053 provides, in relevant part:
(a) [U]nprofessional or dishonorable conduct likely to deceive or
defraud the public includes conduct in which a physician:
…
(3) writes prescriptions for or dispenses to a person who:
(A) is known to be an abuser of narcotic drugs, controlled
substances, or dangerous drugs; or
(B) the physician should have known was an abuser of narcotic
drugs, controlled substances, or dangerous drugs;
…
(5) prescribes or administers a drug or treatment that is
nontherapeutic in nature or nontherapeutic in the manner the drug or
treatment is administered or prescribed;
…
(9) delegates professional medical responsibility or acts to a person
if the delegating physician knows or has reason to know that the
person is not qualified by training, experience, or licensure to
perform the responsibility or acts.
Tex. Occ. Code Ann. § 164.053(a)(3), (5), (9).
Four of the indictments challenged by Bishai rely on section 164.053(a)(3) for
their manner and means and allege that Bishai
as a physician,…practice[d] medicine in violation of [the Medical
Practice Act] by committing a prohibited practice, to wit: committing
unprofessional or dishonorable conduct that is likely to deceive or
defraud the public by writing a prescription for dispensing to [a patient],
a person whom the physician knew or should have known was an
abuser of narcotic drugs, controlled substances, or dangerous drugs, or
by prescribing or administering a drug or treatment that is
nontherapeutic in nature or nontherapeutic in the manner the drug is
administered or prescribed[.]
3
One of the indictments challenged by Bishai relies on section 164.053(5) for its
manner and means and alleges that Bishai
as a physician,…practice[d] medicine in violation of [the Medical
Practice Act] by committing a prohibited practice, to wit: committing
unprofessional or dishonorable conduct that is likely to deceive or
defraud the public by prescribing or administering a drug or treatment
to [a patient] that is nontherapeutic in nature or nontherapeutic in the
manner the drug is administered or prescribed[.]
The sixth indictment challenged by Bishai relies on section 164.053(a)(9) for its
manner and means and alleges that Bishai
as a physician,…practice[d] medicine in violation of [the Medical
Malpractice Act] by committing a prohibited practice, to wit:
committing unprofessional or dishonorable conduct that is likely to
deceive or defraud the public by delegating professional medical
responsibility or acts to a person, namely: [E.M., J.H. or M.Y.] whom
the Defendant knew or had reason to know was not qualified by
training, experience, or licensure to perform the responsibility or acts;
or failed to supervise adequately the activities of [E.M., J.H. or M.Y.],
individuals acting under the supervision of Defendant[.]
Appellate Issues
In two issues, Appellant argues that sections 165.152 and 164.053 of the
Texas Occupations Code are unconstitutionally vague under federal and state law.
According to Bishai, each of the six indictments against him relies on provisions in
section 164.053 to set out the manner and means of the alleged section 165.152
violations. Bishai argues that he has challenged the facial validity of sections
165.152 and 164.053 in the pretrial habeas applications filed in each of the six cases,
and he contends the trial court erred in denying relief.
4
Bishai argues that section 164.053(a)(3) and (5) has terms that are not defined
and that are unconstitutionally vague. More specifically he challenges the terms
“abuser of narcotic drugs, controlled substances, or dangerous drugs,”
“nontherapeutic in nature,” “nontherapeutic in the manner the drug is administered
or prescribed,” and section 164.053(a)(9)’s term “professional medical
responsibility or acts[]” because he contends they are not defined by statute and are
all susceptible to subjective interpretation. 1 According to Bishai, he is not required
to show that the challenged statutes operate unconstitutionally in all possible
circumstances to prevail, and he argues that section 165.152 contains no scienter
requirement and no “‘determinate guidelines’[]” for law enforcement (or the public
in general) to differentiate between an administrative, injunctive, or civil violation
of the Medical Practice Act, and a criminal one.
The State responds that (1) Bishai’s challenge is not cognizable because
habeas relief would not entitle him to immediate release; (2) Bishai has not satisfied
his burden to prove that the presumptively-valid statutes are unconstitutional; and
(3) the statutes under which Bishai is charged are not unconstitutionally vague. We
affirm.
1
Bishai also argues that if the State contends that section 165.152 proscribes
only conduct set forth in section 164.052 (entitled “Prohibited Practices by Physician
or License Applicant”), “violations of [section] 164.052 while practicing medicine
are themselves overly broad and not statutorily defined.”
5
Standard of Review
In reviewing a trial court’s decision on a pretrial application for writ of habeas
corpus, we review the facts in the light most favorable to the trial court’s ruling and,
absent an abuse of discretion, uphold the ruling. Ex parte Wheeler, 203 S.W.3d 317,
324 (Tex. Crim. App. 2006); Ex parte Ali, 368 S.W.3d 827, 830 (Tex. App.—Austin
2012, pet. ref’d). A trial court abuses its discretion when its decision falls outside
the zone of reasonable disagreement. Johnson v. State, 490 S.W.3d 895, 908 (Tex.
Crim. App. 2016).
Whether Bishai’s Claims are Cognizable
Pretrial habeas, followed by an interlocutory appeal, is an extraordinary
remedy. Ex parte Ingram, 533 S.W.3d 887, 891 (Tex. Crim. App. 2017); Ex parte
Perry, 483 S.W.3d 884, 895 (Tex. Crim. App. 2016). This remedy is reserved “for
situations in which the protection of the applicant’s substantive rights or the
conservation of judicial resources would be better served by interlocutory review.”
Ex parte Weise, 55 S.W.3d 617, 620 (Tex. Crim. App. 2001); see Ingram, 533
S.W.3d at 891-92; Perry, 483 S.W.3d at 895. Whether a claim is cognizable on
pretrial habeas is a threshold issue that should be addressed before the merits of the
claim may be resolved. Ex parte Ellis, 309 S.W.3d 71, 79 (Tex. Crim. App. 2010);
Ex parte Paxton, 493 S.W.3d 292, 297 (Tex. App.—Dallas 2016, pet. ref’d). When
determining whether an issue is cognizable by pretrial habeas, courts consider a
6
variety of facts, including whether the rights underlying the claims would be
effectively undermined if not vindicated before trial and whether the alleged defect
would bring into question the trial court’s power to proceed. Perry, 483 S.W.3d at
895-96; Weise, 55 S.W.3d at 619. Appellate courts should be careful to ensure that
a pretrial writ is not misused to secure pretrial appellate review of matters that should
not be put before the appellate court at the pretrial state. See Ellis, 309 S.W.3d at 79;
Ex parte Smith, 178 S.W.3d 797, 801 (Tex. Crim. App. 2005). “Neither a trial court
nor an appellate court should entertain an application for writ of habeas corpus when
there is an adequate remedy by appeal.” Weise, 55 S.W.3d at 619.
Generally, a claim is cognizable in a pretrial writ of habeas corpus if, resolved
in the applicant’s favor, it would deprive the trial court of the power to proceed and
result in the applicant’s immediate release. Ex parte Smith, 185 S.W.3d 887, 892
(Tex. Crim. App. 2006) (citing Weise, 55 S.W.3d at 619); see Smith, 178 S.W.3d at
801 (explaining the defendant may use pretrial writ of habeas corpus “only in very
limited circumstances[]”: (1) to challenge State’s power to restrain him at all; (2) to
challenge manner of his pretrial restraint, such as denial of bail or conditions
attached to bail; and (3) to raise certain issues that, if meritorious, would bar
prosecution or conviction); see also Perry, 483 S.W.3d at 895 (discussing types of
claims that are cognizable in pretrial writ of habeas corpus); Weise, 55 S.W.3d at
619-20 (same).
7
According to the State, Bishai’s claims are not cognizable because Bishai
faces prosecution under ten indictments, eight of which have been consolidated for
trial, and that even if his habeas arguments prevail, he would not be entitled to
immediate release because he would remain subject to prosecution under the four
unchallenged indictments. The State also argues that because Bishai has an adequate
remedy to present his claims by direct appeal, his pretrial writ applications should
not be considered by a trial court or appellate court.
In support of its argument, the State relies on Ex parte Couch, 629 S.W.3d
217, 217-18 (Tex. Crim. App. 2021), and Ex parte Ares, No. 13-17-00638-CR, 2019
Tex. App. LEXIS 8394, at **11-12 (Tex. App.—Corpus Christi Sept. 19, 2019, pet.
ref’d) (mem. op., not designated for publication). In Ex parte Couch, Couch was
charged in four separate cause numbers with money laundering under section
34.02(a)(4) of the Texas Penal Code which provides that
A person commits an offense if the person knowingly: finances or
invests or intends to finance or invest funds that the person believes are
intended to further the commission of criminal activity.
629 S.W.3d at 217 (quoting Tex. Penal Code Ann. § 34.02(a)(4)). Couch filed a
pretrial application for writ of habeas corpus seeking dismissal of the indictment on
the ground that the statute was facially unconstitutional because “by forbidding the
mere intent to finance or invest funds intended for further the commission of criminal
activity,” it creates a “thought crime” under the First, Eighth, and Fourteenth
8
Amendments. Id. The trial court denied relief. Id. The court of appeals concluded
that the statute was not facially unconstitutional and affirmed the trial court’s ruling.
Id. On Couch’s petition for discretionary review, the Court of Criminal Appeals
explained its rationale in remanding the case to the court of appeals to address the
cognizability of the issues raised in Couch’s pretrial writ application:
In considering appellant’s petition, we noticed that there may be
a question about the cognizability of appellant’s challenge to the statute.
“[A] pretrial writ application is not appropriate when resolution of the
question presented, even if resolved in favor of the applicant, would not
result in immediate release.” [] Here, appellant’s indictments allege that
she did knowingly (1) “finance or invest” or (2) “intent to finance or
invest,” but her writ application challenges only the portion of the
statute pertaining to the second of these, “intend to finance or invest.”
Thus, even if the challenged portion of the statute were struck as
facially unconstitutional, it may be that only those corresponding
portions of her indictments would need to be struck, and the prosecution
could at least theoretically proceed on the other allegations.
The court of appeals should have addressed cognizability as a
threshold issue before reaching the merits of the claim. []
Id. (internal citations omitted).
In Ex parte Ares, Ares was indicted for the felony offenses of (1) theft of
property in an aggregate amount of more than $100,000 but less than $200,000; and
(2) securing the execution of a document by deception with a value of $20,000 or
more but less than $100,000. 2019 Tex. App. LEXIS 8394, at **1-2. Ares allegedly
had taken payments through her business from customers for the purchase of mobile
homes but never gave the customers the products. Id. at *2. She filed a pretrial writ
of habeas corpus and the trial court denied relief. Id. On appeal, she argued that she
9
was being illegally restrained by criminal charges related to a civil debt and that the
statute she was charged under was unconstitutional as applied to her. Id. The
Thirteenth Court of Appeals affirmed the denial of the writ of habeas corpus. Id. She
later filed motion to quash and dismiss the indictment on several grounds and the
trial court denied relief. Id. at **2-3. On appeal, she argued that the statutes under
which she was indicted were in pari materia 2 with the Manufactured Housing Act
and that such a claim is cognizable in a pretrial petition for writ of habeas corpus.
Id. at *3. The Thirteenth Court of Appeals noted that a court may only conclude that
two statutes are in pari materia if the charging instrument “on its face” raises the
issue, and the Court concluded that count one did not allege facts indicating that
manufactured housing was involved or that Ares could have been charged under the
Manufactured Housing Act. Id. at **10-11. The Thirteenth Court of Appeals further
determined that Ares’s challenge to count two of the indictment was not cognizable
in a pretrial writ of habeas corpus because count one was valid and, therefore, even
if Ares was successful on her challenge to count two, it would not result in her
immediate release. Id. at **11-12.
2
The Court in Ares explained that under the doctrine of in pari materia,
statutes that deal with the same general subject or have the same general purpose can
be construed together, statutes in conflict can be harmonized, or, in the case of an
irreconcilable conflict, a specific statute controls over a more general statute. Ex
parte Ares, No. 13-17-00638-CR, 2019 Tex. App. LEXIS 8394, at **8-9 (Tex.
App.—Corpus Christi Sept. 19, 2019, pet. ref’d) (mem. op., not designated for
publication).
10
Bishai argues in his Reply Brief that his claims are cognizable, and that Ares
and Couch are distinguishable because in those cases Ares and Couch did not
challenge all allegations in the respective indictments and that a portion of the
indictments would have survived even if the habeas claims had succeeded.
According to Bishai, if his challenges to the indictments succeed, the entirety of
those six indictments will fail and no viable portion of each of the indictments will
remain. He argues that “[t]he State confuses foreclosing prosecution generally with
foreclosing prosecution on separate, independent indictments.”
The purpose of a pretrial habeas corpus application is to stop trial and secure
immediate release from illegal confinement or restraint. Kelson v. State, 167 S.W.3d
587, 593 (Tex. App.—Beaumont 2005, no pet.); Green v. State, 999 S.W.2d 474,
477 (Tex. App.—Fort Worth 1999, pet. ref’d); see also Perry, 483 S.W.3d at 895.
Bishai has not established that he is entitled to immediate release from confinement
if he is successful in his challenges to the six indictments, nor does the record support
that result. The six charges Bishai challenges in his pretrial writ are consolidated for
trial with other charges contained in other indictments he has not challenged here. If
Bishai is convicted on any of the six challenged indictments he can make his
constitutional challenges on appeal. See Weise, 55 S.W.3d at 619. We conclude
Bishai’s claims are not cognizable in a pretrial habeas, and the trial court did not
abuse its discretion in denying Bishai’s applications.
11
Because we have determined that Bishai’s claims are not cognizable, we need
not address the merits of his claims. See Ellis, 309 S.W.3d at 79; Paxton, 493 S.W.3d
at 297. We affirm the trial court’s order denying relief on Bishai’s pretrial
applications for writ of habeas corpus.
AFFIRMED.
_________________________
LEANNE JOHNSON
Justice
Submitted on October 27, 2021
Opinion Delivered November 24, 2021
Do Not Publish
Before Golemon, C.J., Kreger and Johnson, JJ.
12