Ex Parte: Anthony Travis Backus

Opinion

AFFIRM; and Opinion Filed August 23, 2016.

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-16-00517-CR

EX PARTE ANTHONY TRAVIS BACKUS

On Appeal from the 416th Judicial District Court Collin County, Texas Trial Court Cause No. 416-81989-2014

MEMORANDUM OPINION Before Justices Lang-Miers, Evans, and Brown Opinion by Justice Lang-Miers Anthony Travis Backus is charged with the offense of online impersonation. The

indictment alleged that appellant, “without obtaining the consent of [L.B.], intentionally and

knowingly use[d] the name of [L.B.] to post one or more messages on a commercial social

networking site with the intent to harm, defraud, intimidate and threaten [L.B.].” See TEX.

PENAL CODE ANN. § 33.07(a) (West Supp. 2015). The State alleged that appellant used L.B.’s

photograph to post an ad on Craigslist entitled “Horny 18 year old.” The State alleged that “[t]he

ad stated that the female depicted in the photos was seeking a job in the adult industry and

needed ‘practice.’ The ad also included [L.B.’s] phone number. [She] received numerous text

and phone calls in response to [appellant’s] actions.”

Appellant filed a pretrial application for writ of habeas corpus challenging the

constitutionality of section 33.07(a). The trial court denied relief on appellant’s application

without conducting a hearing. In three issues, appellant contends section 33.07(a) is facially unconstitutional because it is (1) overbroad in violation of the First Amendment, (2) too vague to

satisfy the Fifth and Fourteenth Amendments, and (3) violates the Dormant Commerce Clause.

In his first issue, appellant contends that section 33.07(a) is facially unconstitutional

because it is overbroad and violates the First Amendment. He argues that the statute restricts

speech based on its content and cannot pass the strict scrutiny test.

In his second issue, appellant argues that the statute is facially unconstitutional for

vagueness. He specifically challenges the statute’s use of an “all encompassing ‘harm’

standard,” and argues that the definition fails to provide a person of ordinary intelligence with

fair notice of what the statute prohibits and authorizes or encourages seriously discriminatory

enforcement.

In his third issue, appellant argues that the statute violates the Dormant Commerce Clause

because it “unduly burdens interstate commerce by attempting to place regulations on Internet

users everywhere.”

We decided these exact issues in a similar case which we issued today. Ex parte

Bradshaw, No. 05-16-00570-CR, slip op. at *1–18 (Tex. App.—Dallas Aug. 23, 2016, no pet.

h.). In that case, the appellant used the persona of another, without that person’s consent, to

establish multiple online profiles containing identifying personal information, including the

victim’s cell phone number, and to post or send one or more messages on an Internet website

with the intent to harm the victim. Id. We concluded that section 33.07(a) was not overbroad or

vague and did not violate the Dormant Commerce Clause. Id. For the reasons stated in Ex parte

Bradshaw, we conclude that section 33.07(a) is not facially unconstitutional. Id.; see also State

v. Stubbs, No. 14-15-00510-CR, 2016 WL 4217837, at *1–13 (Tex. App.—Houston [14th Dist.]

Aug. 9, 2016, no pet. h.).

–2– We affirm the trial court’s order denying relief on appellant’s application for writ of

habeas corpus.

/Elizabeth Lang-Miers/ ELIZABETH LANG-MIERS JUSTICE

Do Not Publish TEX. R. APP. P. 47

160517F.U05

–3– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

EX PARTE ANTHONY TRAVIS BACKUS On Appeal from the 416th Judicial District Court, Collin County, Texas No. 05-16-00517-CR Trial Court Cause No. 416-81989-2014. Opinion delivered by Justice Lang-Miers. Justices Evans and Brown participating.

Based on the Court’s opinion of this date, the trial court’s order denying relief on appellant’s application for writ of habeas corpus is AFFIRMED.

Judgment entered this 23rd day of August, 2016.

–4–