Ex Parte Billy MacK Maddison

IN THE
TENTH COURT OF APPEALS

No. 10-16-00081-CR

EX PARTE BILLY MACK MADDISON

From the 19th District Court
McLennan County, Texas
Trial Court No. 2014-1607-C1A

OPINION

Billy Mack Maddison was indicted for the felony offense of online harassment

under section 33.07(a)(1) of the Texas Penal Code. See TEX. PENAL CODE ANN. § 33.07(a)(1)

(West 2016). Maddison filed a pre-trial application for writ of habeas corpus in which he

asserted that section 33.07 is unconstitutional because it violates the First Amendment,

the Due Process Clause, and the Dormant Commerce Clause of the United States

Constitution. Maddison requested that the trial court declare section 33.07

unconstitutional and, in turn, dismiss his indictment. The trial court granted habeas

relief, declaring all of section 33.07 unconstitutionally overbroad and vague as written.

The State appeals.
 Because Maddison was indicted only under subsection (a)(1) of section 33.07, the

trial court did not have jurisdiction to declare the entire statute unconstitutional. We

further conclude that section 33.07(a)(1) is not unconstitutionally overbroad or vague.1

Accordingly, we reverse and remand.

I. BACKGROUND

As noted above, Maddison was indicted under section 33.07(a)(1) of the Texas

Penal Code, which provides the following:

A person commits an offense if the person, without obtaining the other
person’s consent and with the intent to harm, defraud, intimidate, or
threaten any person, uses the name or persona of another person to:

(1) create a web page on a commercial social networking site or other
Internet website; or
....

Id. § 33.07(a)(1). Specifically, the indictment alleged that Maddison, without obtaining

the consent of Felicia Colburn, intentionally or knowingly used the name and/or persona

of Colburn to create a webpage on Facebook, a commercial social-network site, with the

intent to harm, defraud, intimidate, or threaten Colburn. See id. An offense under

subsection (a) is a third-degree felony. Id. § 33.07(c).

Maddison filed a pre-trial application for writ of habeas corpus, arguing that

section 33.07 is unconstitutional because it is a content-based restriction that criminalizes

1 We need not address Maddison’s Dormant-Commerce-Clause argument because the trial court,
in its order, specifically noted that it did not reach Maddison’s argument under the Dormant Commerce
Clause.

Ex parte Maddison Page 2
a substantial amount of protected speech. Maddison further argued that section 33.07 is

unconstitutionally vague and violates the Dormant Commerce Clause of the United

States Constitution. See Ex parte Thompson, 442 S.W.3d 325, 333 (Tex. Crim. App. 2014)

(stating that a defendant may file a pre-trial application for writ of habeas corpus to raise

a facial challenge to the constitutionality of a statute that defines a charged offense).

On February 25, 2016, the trial court signed an order granting Maddison habeas

relief. In its order, the trial court stated the following:

The court has carefully read the briefs of the parties and, after hearing the
arguments of Counsel, finds that Maddison is entitled to relief.
Accordingly, the Court finds that Sec. 33.07 is unconstitutionally overbroad
because it is a content-based restriction that criminalizes speech protected
under the First Amendment of the United States Constitution. In order to
establish the “harm” contemplated in Sec. 33.07, it would be necessary to
examine the content of the speech alleged to have caused the harm. Because
the statute is content based, the State has the burden of showing its
constitutionality, and the State must show the statute satisfies strict
scrutiny, and this the State has failed to do.

The Court also finds that “harm” as defined by Sec. 33.01(14) Texas Penal
Code is so vague and overbroad as to make it impossible to guess at its
meaning. The Court realizes that with the advent of social media and
modern digital communication there is great opportunity for individuals to
perpetuate mischief that can result in falsehoods and hurt feelings. But that
has always been the case. A statute that seeks to prevent such speech must
be narrowly drawn and serve a compelling state interest. Sec. 33.07 fails on
both fronts.

....

Because the Court has found Section 33.07 of the Penal Code
unconstitutionally overbroad and vague, it is not necessary to reach the
Applicant’s third point that the statute unduly burdens interstate
commerce.
Ex parte Maddison Page 3
This appeal followed.

II. OVERBREADTH

In one issue, the State argues that trial court erred in granting Maddison’s

application for writ of habeas corpus and declaring section 33.07 unconstitutional based

on overbreadth and vagueness. And though the trial court did not reach Maddison’s

argument under the Dormant Commerce Clause, the State nevertheless contends that

section 33.07 does not “unduly burden interstate commerce by attempting to place

regulations on the entirety of the Internet, thus violating the Dormant Commerce

Clause.”

At the outset of our analysis, we note that Maddison was only charged under

section 33.07(a)(1); thus, he could only challenge the constitutionality of section

33.07(a)(1), not the remainder of the statute. Accordingly, the trial court did not have

jurisdiction to declare all of section 33.07 unconstitutional, but rather only subsection

(a)(1). See State v. Stubbs, 502 S.W.3d 218, 223-24 (Tex. App.—Houston [14th Dist.] 2016,

pet. ref’d) (citing Limon v. State, 947 S.W.2d 620, 625 (Tex. App.—Austin 1997, no writ);

State v. Cannady, 913 S.W.2d 741, 745 (Tex. App.—Corpus Christi 1996), aff’d, 11 S.W.3d

205 (Tex. Crim. App. 2000), cert. denied, 560 U.S. 920, 130 S. Ct. 3317, 176 L. Ed. 2d 1215

(2010)). We now analyze the State’s overbreadth argument.

Ex parte Maddison Page 4
A. Applicable Law

“Whether a statute is facially constitutional is a question of law that we review de

novo.” Id. at 224 (citing Ex Parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013)). When

presented with a challenge to the constitutionality of a statute, we presume that the

statute is valid and that the Legislature has not acted arbitrarily or unreasonably. Ex Parte

Lo, 424 S.W.3d at 14-15; see Ex parte Flores, 483 S.W.3d 632, 638 (Tex. App.—Houston [14th

Dist.] 2015, pet. ref’d) (citing Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002)).

Typically, the party challenging the statute has the burden to establish its

unconstitutionality. Ex parte Lo, 424 S.W.3d at 15.

The First Amendment—which prohibits laws “abridging the freedom of
speech”—limits the government’s power to regulate speech based on its
substantive content. Ex parte Flores, 483 S.W.3d at 639; see U.S. CONST.
amend. I; Reed v. Town of Gilbert, Ariz., ___ U.S. ___, 135 S. Ct. 2218, 2226,
192 L. Ed. 2d 236 (2015). Content-based regulations are those that
distinguish favored from disfavored speech based on the idea or message
expressed. Ex parte Lo, 424 S.W.3d at 15; Ex parte Flores, 483 S.W.3d at 639.
Content-based regulations operate to restrict particular viewpoints or
public discussion of an entire topic or subject matter. See Reed, ____ U.S.
___, 135 S. Ct. at 2229-30. In these situations, the usual presumption of
constitutionality is reversed; the content-based statute is presumed invalid,
and the State bears the burden to rebut this presumption. Ex Parte Lo, 424
S.W.3d at 15; Ex parte Flores, 483 S.W.3d at 639.

A statute that suppresses, disadvantages, or imposes differential
burdens upon speech because of its content is subject to the most exacting
or strict scrutiny. Ex parte Lo, 424 S.W.3d at 15 (citing Turner Broad. Sys., Inc.
v. F.C.C., 512 U.S. 622, 642, 114 S. Ct. 2445, 129 L. Ed. 2d 497 (1994)). Such a
regulation may be upheld only if it is necessary to serve a compelling state
interest and employs the least speech-restrictive means to achieve its goal.
Id. Content-neutral regulation of the time, place, and manner of speech, as
well as regulation of speech that can be justified without reference to its
Ex parte Maddison Page 5
 content, receives intermediate scrutiny. Ex parte Flores, 483 S.W.3d at 639
(citing Turner Broad., Sys., 512 U.S. at 642, and Ward v. Rock Against Racism,
491 U.S. 781, 791, 109 S. Ct. 2746, 105 L. Ed. 2d 661 (1989)). Such a regulation
is permissible if it promotes a significant governmental interest and does
not burden substantially more speech than necessary to further that
interest. Id. (citing McCullen v. Coakley, ___ U.S. ___, 134 S. Ct. 2518, 2534-
35, 189 L. Ed. 2d 502 (2014), and Ex parte Thompson, 442 S.W.3d at 344).

Stubbs, 502 S.W.3d at 224-25.

When a party challenges a statute as both overbroad and vague, we first consider

the overbreadth challenge. See Ex parte Flores, 483 S.W.3d at 643. The overbreadth

doctrine is strong medicine that is used sparingly and only as a last resort. State v. Johnson,

475 S.W.3d 860, 865 (Tex. Crim. App. 2015); see also New York State Club Ass’n, Inc. v. City

of New York, 487 U.S. 1, 14, 108 S. Ct. 2225, 101 L. Ed. 2d 1 (1988). To be unconstitutionally

overbroad, “the statute must prohibit a substantial amount of protected expression, and

the danger that the statute will be unconstitutionally applied must be realistic and not

based on ‘fanciful hypotheticals.’” Johnson, 475 S.W.3d at 865 (quoting United States v.

Stevens, 559 U.S. 460, 485, 130 S. Ct. 1577, 176 L. Ed. 2d 435 (2010) (Alito, J., dissenting)).

Laws that inhibit the exercise of First Amendment rights will be held facially overbroad

only if the impermissible applications of the law are real and substantial when judged in

relation to the statute’s plainly legitimate sweep. See Ex parte Flores, 483 S.W.3d at 643

(citing Broadrick v. Okla., 413 U.S. 601, 612-15, 93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973)). An

overbreadth challenge will rarely, if ever, succeed against a statute “that is not specifically

addressed to speech or to conduct that it necessarily associated with speech (such as

Ex parte Maddison Page 6
picketing or demonstrating).” Johnson, 475 S.W.3d at 865 (quoting Hicks, 539 U.S. at 124).

“The burden rests upon the person challenging the statute to establish its

unconstitutionality.” Ex parte Flores, 483 S.W.3d at 643 (citing Rodriguez, 93 S.W.3d at 69).

We must uphold the statute if we can determine a reasonable construction rendering it

constitutional. Id. (citing Duncantell v. State, 230 S.W.3d 835, 843 (Tex. App.—Houston

[14th Dist.] 2007, pet. ref’d)).

B. Construing section 33.07

We consider the plain meaning of the acts proscribed by the statute to determine

what the statute covers. Ex parte Flores, 489 S.W.3d at 643 (citing United States v. Williams,

553 U.S. 285, 293, 128 S. Ct. 1830, 170 L. Ed. 2d 650 (2008)); see Ex parte Perry, 483 S.W.3d

884, 902 (Tex. Crim. App. 2016). In construing a statute, we give effect to the plain

meaning of its language, unless the language is ambiguous or the plain meaning leads to

absurd results that the legislature could not have intended. Ex parte Perry, 483 S.W.3d at

902. Moreover, we presume every word in the statute has been used for a purpose and

that each word, clause, and sentence should be given effect, if possible. Id. at 902-03; see

TEX. GOV’T CODE ANN. § 311.011(a) (West 2013) (“Words and phrases shall be read in

context and construed according to the rules of grammar and common usage.”).

However, “[w]ords and phrases that have acquired a technical or particular meaning,

whether by legislative definition or otherwise, shall be construed accordingly.” TEX.

GOV’T CODE ANN. § 311.011(b).

Ex parte Maddison Page 7
 Section 33.07(a)(1) is not ambiguous. The language of the statute plainly

proscribes the conduct of using, without consent, another person’s name or persona to

create a web page on a commercial social networking site or other Internet website with

the intent to harm, defraud, intimidate, or threaten any person. See TEX. PENAL CODE

ANN. § 33.07(a)(1). “The forbidden conduct is taking another’s identity, without consent

and with the requisite intent, and using that identity to make certain electronic

communications.” Ex parte Bradshaw, 501 S.W.3d 665, 673 (Tex. App.—Dallas 2016, pet.

ref’d). Considering the plain text of section 33.07(a)(1), the conduct proscribed is certainly

connected to and will tend to involve speech. See Stubbs, 502 S.W.3d at 226; see also Ex

parte Bradshaw, 501 S.W.3d 665, 673 (Tex. App.—Dallas 2016, pet. ref’d). As such, we must

determine whether that conduct is entitled to protection under the First Amendment. See

Stubbs, 502 S.W.3d at 226; see also Ex parte Bradshaw, 501 S.W.3d at 673.

C. Whether speech restricted by section 33.07 is protected by the First Amendment

In the trial court and on appeal, Maddison contends that the First Amendment

protects not only traditional speech, but also expressive conduct. Maddison asserts that,

whether the creation of a web page is traditional speech or expressive conduct, we must

look at the content of the expression to determine whether a person has violated section

33.07(a)(1). Maddison posits that, because section 33.07(a)(1) restricts protected speech

based on its content, the statute should be analyzed under a strict-scrutiny standard.

Although conceding that the State has the right to prohibit certain categories of

Ex parte Maddison Page 8
unprotected speech, such as obscenity, incitement, fraud, and true threats, Maddison

argues that the United States Supreme Court has drawn narrow lines around what

constitutes unprotected speech, and speech that is harassing, harmful, online,

personifying, or a violation of privacy is protected by the First Amendment. The State

counters that section 33.07(a) is not overbroad as a content-based restriction of speech

and that it does not implicate the First Amendment.

Impersonation is a nature-of-conduct offense. See Cornwell v. State, 471 S.W.3d 458,

464 (Tex. Crim. App. 2015) (interpreting the statute governing impersonation of a public

servant). Moreover, a regulation of conduct only implicates the First Amendment if it

qualifies as “expressive conduct” akin to speech. See Arnold v. State, 853 S.W.2d 543, 545-

46 (Tex. Crim. App. 1993); see Ex parte Thompson, 442 S.W.3d 325, 334 (Tex. Crim. App.

2014). On appeal, Maddison relies on Thompson to support his contention that the usage

of another’s name or persona to create a webpage, post a message, or send a message is

“inherently expressive” and, thus, entitled to First Amendment protection. In Thompson,

the Court of Criminal Appeals concluded that the act of creating a photograph or visual

recording was inherently expressive and entitled to First Amendment protection because

“the process of creating the end product cannot reasonably be separated from the end

product for First Amendment purposes.” Thompson, 442 S.W.3d at 337. Importantly,

section 33.07(a)(1) only regulates the conduct of assuming another’s person’s identity,

without that person’s consent, with the intent to harm, defraud, intimidate, or threaten

Ex parte Maddison Page 9
any person by creating a web page. “Any subsequent ‘speech’ related to that conduct is

integral to criminal conduct and may be prevented and punished without violating the

First Amendment.” Ex parte Bradshaw, 501 S.W.3d at 674 (citing Stevens, 559 U.S. at 468).

“Otherwise proscribable conduct does not become protected by the First Amendment

simply because the conduct happens to involve the written or spoken word.” Stubbs, 502

S.W.3d at 226 (citing United States v. Alvarez, ___ U.S. ___, 132 S. Ct. 2537, 2544, 183 L. Ed.

2d 574 (2012) (plurality op.)). “Almost all conceivable applications of section 33.07(a) to

speech associated with the proscribed conduct fall within the categories of criminal,

fraudulent, and tortious activity that are unprotected by the First Amendment.” Ex parte

Bradshaw, 501 S.W.3d at 674 (citing Stevens, 559 U.S. at 468-69) (noting that obscenity,

defamation, fraud, incitement, and speech integral to criminal conduct is not

constitutionally-protected speech); Scott v. State, 322 S.W.3d 662, 668-69 (Tex. Crim. App.

2010) (stating that there is no First Amendment protection for speech that invades the

substantial privacy interests of another in an essentially intolerable manner), overruled in

part on other grounds by Wilson v. State, 448 S.W.3d 418, 423 (Tex. Crim. App. 2014)).

D. Intermediate vs. Strict Scrutiny

Despite the foregoing, Maddison contends that there are some conceivable

applications of section 33.07(a)(1) that could reach speech protected by the First

Amendment. Reciting passages from Virgil and Shakespeare in which the phrase “use

that name” or “use your name” appears, Maddison argues that a person generally uses

Ex parte Maddison Page 10
another’s name to address or describe that person, and using someone’s name is speech

entitled to First Amendment protection. Furthermore, Maddison asserts that comedians

Chevy Chase, Dana Carvey, and Jay Pharoah impersonate politicians “to entertain

America at the subjects’ expense, and sometimes to hurt the subjects—[Gerald] Ford

would likely not be remembered as a bumbler if not for Chase’s portrayal.” We note,

however, that these hypotheticals are insufficient to establish that section 33.07(a)(1) is

unconstitutionally overbroad. See Johnson, 475 S.W.3d at 865 (“The statute must prohibit

a substantial amount of protected expression, and the danger that the statute will be

unconstitutionally applied must be realistic and not based on ‘fanciful hypotheticals.’”).

However, to the extent that section 33.07(a)(1) could conceivably implicate protected

speech, we will determine whether the statute is content based and subject to strict

scrutiny, or content neutral and subject to intermediate scrutiny.

Both the Stubbs and Bradshaw Courts have concluded that section 33.07(a) is

content neutral and that the purpose and justification for the statute are not content

based. See Stubbs, 502 S.W.3d at 230-31 (“Nothing on the face of section 33.07(a) indicates

that any particular topic or subject matter of speech otherwise would be restricted (or

not) more than speech on any other topic or subject matter. . . . Nor does section 33.07(a)

facially discriminate on the basis of any particular viewpoint. . . . Consistent with the text

of the statute, the Legislature did not appear to be targeting or expressing its

disagreement with any particular topic or viewpoint, but rather sought to address

Ex parte Maddison Page 11
malicious usage of someone else’s name or persona to create a web page or post a

message online without her permission.”); see also Ex parte Bradshaw, 501 S.W.3d at 676

(“However, section 33.07(a) on its face is content neutral. . . . There is nothing in the

legislative history that would suggest the legislature was targeting or expressing its

disagreement with any particular topic or viewpoint by enacting section 33.07(a). . . . We

conclude section 33.07(a) is facially content neutral and the purpose and justification for

the law are not content based.”). Accordingly, both courts concluded that intermediate,

rather than strict, scrutiny applied. See Stubbs, 502 S.W.3d at 232; see also Ex parte

Bradshaw, 501 S.W.3d at 676. We agree that section 33.07(a)(1) is content neutral; that the

purpose and justification for the statute is not content based; and that section 33.07(a) is

subject to intermediate scrutiny. See Ex parte Thompson, 442 S.W.3d at 345 (“Under the

standards articulated above, if a law is content based, then strict scrutiny applies, but if

it is content neutral, intermediate scrutiny applies.”).

A regulation that is content neutral is permissible if it promotes a significant

governmental interest and does not burden substantially more speech than necessary to

further that interest. McCullen, 134 S. Ct. at 2534-35; Thompson, 442 S.W.3d at 344.

“Section 33.07(a) serves a significant governmental interest of protecting citizens from

crime, fraud, defamation, and threats from online impersonation.” Ex parte Bradshaw, 501

S.W.3d at 676 (citing Stubbs, 502 S.W.3d at 232; Riley v. Nat’l Fed. Of the Blind of N.C., Inc.,

487 U.S. 781, 792, 108 S. Ct. 2667, 101 L. Ed. 2d 669 (1988) (concluding that the State’s

Ex parte Maddison Page 12
interest in protecting the public from fraud is a sufficiently-substantial interest to justify

narrowly-tailored regulation); Ex parte Lo, 424 S.W.3d at 21 (discussing the State’s

compelling interest in protecting children from online sexual predators); Serv. Mach.

Shipbuilding Corp. v. Edwards, 617 F.2d 70, 74 (5th Cir. 1980) (noting that deterring and

detecting crime is a legitimate State interest)). “It also serves a significant First

Amendment interest in regulating false and compelled speech on the part of the

individual whose identity has been appropriated.” Id. at 677 (citation omitted). And to

the extent that section 33.07(a)(1) burdens any protected speech, Maddison’s

hypotheticals fail to establish that any such impermissible applications are substantial in

comparison to the statute’s plainly legitimate sweep over unprotected speech and

conduct. See id. (citing Johnson, 475 S.W.3d at 865; Ex parte Fujisaka, 472 S.W.3d 792, 795

(Tex. App.—Dallas 2015, pet. ref’d) (“However, a statute may not be held overbroad

merely because it is possible to conceive of some impermissible applications.”)).

Accordingly, we conclude that, because section 33.07(a)(1) promotes a substantial

governmental interest, the State’s interest would be achieved less effectively without the

law, and the means chosen are not substantially broader than necessary to satisfy the

State’s interest; therefore, section 33.07(a)(1) survives intermediate scrutiny. We further

conclude that Maddison failed to establish that section 33.07(a)(1) is facially

unconstitutional under the First Amendment due to being substantially overbroad.

Ex parte Maddison Page 13
 III. VAGUENESS

In addition to finding section 33.07(a) overbroad, the trial court also determined

that the statute is unconstitutionally vague. In his brief, Maddison contends that section

33.07 is unconstitutionally vague because it uses an “all-encompassing ‘harm’ standard”

that would cause potential speakers to steer much further from the “unlawful zone” of

conduct than would a more narrow statute aimed squarely at unprotected speech.

Once again, both the Stubbs and Bradshaw Courts have addressed this contention.

See Stubbs, 502 S.W.3d at 235-37; Ex parte Bradshaw, 501 S.W.3d at 677-78. More

specifically, the Bradshaw Court stated the following:

A criminal conviction fails to comport with the Due Process Clause of the
Fifth Amendment, as applied to the states by the Fourteenth Amendment,
if the statute of conviction fails to provide a person of ordinary intelligence
fair notice of what the statue prohibits, or it authorizes or encourages
seriously discriminatory enforcement. A statute is unconstitutionally
vague if persons of common intelligence must necessarily guess at its
meaning and differ about its application. All criminal laws must give fair
notice about what activity is made criminal. However, a statute need not
be mathematically precise; it must only provide fair warning in light of
common understanding and practices.

When a statute implicates First Amendment rights, the law must be
sufficiently definite to avoid chilling protected expression. Ordinarily, a
person who has engaged in some clearly proscribed conduct cannot
complain of the vagueness of the statute as it may be applied to others, but
that requirement has been relaxed in the context of statutes that proscribe
speech protected by the First Amendment to permit an argument that a
statute is overbroad because it is unclear whether it impermissibly regulates
a substantial amount of protected speech.

The Texas Penal Code defines harm generally as anything
reasonably regarded as loss, disadvantage, or injury, including harm to
Ex parte Maddison Page 14
 another person in whose welfare the person affected is interested. More
specifically, chapter 33 of the penal code contains its own definition of harm
as various types of damage that can occur to computer data and also any
other loss, disadvantage, or injury that might reasonably be suffered as a
result of the actor’s conduct. Further, harm is a common word with a
common meaning that comports with the definitions of harm in the penal
code.

We conclude the relevant penal code definitions of harm, in
conjunction with the operative provisions of section 33.07(a), sufficiently
provide a person of ordinary intelligence fair notice of what the statute
prohibits and do not authorize or encourage seriously discriminatory
enforcement. Accordingly, section 33.07(a) is not unconstitutionally vague.

501 S.W.3d at 677-78 (internal citations & quotations omitted).

We agree with the reasoning and conclusion of the Bradshaw Court. See id. at 677-

78. Accordingly, we cannot say that section 33.07(a)(1) of the Texas Penal Code is

unconstitutionally vague. And given that we have concluded that section 33.07(a)(1) is

not unconstitutionally overbroad or vague, we necessarily disagree with the

underpinnings of the trial court’s order in this case. As such, we sustain the State’s sole

issue on appeal.

IV. CONCLUSION

Having sustained the State’s sole issue on appeal, we reverse the trial court’s order

granting Maddison’s application for writ of habeas corpus. We remand for further

proceedings.

Ex parte Maddison Page 15
 AL SCOGGINS
Justice

Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
(Chief Justice Gray dissenting)
Reversed and remanded
Opinion delivered and filed April 26, 2017
Publish
[CR25]

Ex parte Maddison Page 16