In The
Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-17-00366-CR NO. 09-17-00367-CR ____________________
EX PARTE JOSEPH BOYD
________________________________________________________________________
On Appeal from the 1A District Court Tyler County, Texas Trial Cause Nos. 13,067 and 13,068 ________________________________________________________________________
MEMORANDUM OPINION
In separate indictments, the State charged Joseph Boyd with committing
online impersonation. See Tex. Penal Code Ann. § 33.07(a) (West 2011). Boyd
challenged the facial constitutionality of the statute in a pre-trial application for writs
of habeas corpus. The trial court denied the application after conducting a hearing.
In his appeal, Boyd contends section 33.07(a) is unconstitutionally overbroad in
violation of the First Amendment and unconstitutionally vague in violation of the
Fourteenth Amendment. We affirm the trial court’s order.
Online Impersonation
The challenged statute provides:
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 (2) post or send one or more messages on or through a commercial social networking site or other Internet website, other than on or through an electronic mail program or message board program.
Tex. Penal Code Ann. § 33.07(a).
The indictment for Trial Cause Number 13,067 alleged that, on or about
August 22, 2013, Boyd “without obtaining the consent of [the complainant S.M.],1
. . . intentionally and knowingly use[d] the name and persona of the complainant to
create a web page on a social networking site, namely MeetMe.com with the intent
to harm [S.M.]” The indictment for Trial Cause Number 13,068 alleged that on or
about December 27, 2016, Boyd “without obtaining the consent of [the complainant,
R.S.] . . . intentionally and knowingly use[d] the name and persona of the
complainant to create a web page on a social networking site, namely Facebook with
1 To protect the privacy of the victims, we identify them by their initials. See Tex. Const. art. I, § 30(a)(1) (granting victims of crime “the right to be treated with fairness and with respect for the victim’s dignity and privacy throughout the criminal justice process”). 2
the intent to harm [R.S.]” Therefore, only the first subsection of section 33.07(a) is
at issue here.
Facial Challenge
A defendant may present a facial challenge to the constitutionality of a statute
that defines the offense charged by filing a pretrial application for a writ of habeas
corpus. Ex parte Thompson, 442 S.W.3d 325, 333 (Tex. Crim. App. 2014). A facial
challenge attacks the statute itself rather than the statute’s application to the
defendant. Peraza v. State, 467 S.W.3d 508, 514 (Tex. Crim. App. 2015) (quoting
City of Los Angeles v. Patel, 135 S.Ct. 2443, 2449 (2015)). Whether a statute is
facially constitutional is reviewed de novo as a question of law. Ex Parte Lo, 424
S.W.3d 10, 14 (Tex. Crim. App. 2013).
We begin with the presumption that the statute is valid and that the Legislature
has not acted unreasonably or arbitrarily in enacting the statute. Ex parte Granviel,
561 S.W.2d 503, 511 (Tex. Crim. App. 1978). Usually, the defendant bears the
burden to establish a statute’s unconstitutionality, and we make every reasonable
presumption in favor of the statute’s constitutionality, unless the contrary is clearly
shown. Peraza, 467 S.W.3d at 514. In the context of a challenge based upon the First
Amendment, however, the level of scrutiny depends upon whether a statute
constitutes a content-based regulation of expression. Thompson, 442 S.W.3d at 344.
When a statute distinguishes favored from disfavored speech based on the ideas
expressed, the content-based restriction is presumptively invalid and the State bears
the burden to rebut that presumption. Lo, 424 S.W.3d at 15.
When a statute is challenged for overbreadth or for vagueness, we construe
the challenged statute “in accordance with the plain meaning of its language unless
the language is ambiguous or the plain meaning leads to absurd results that the
Legislature could not possibly have intended.” Wagner v. State, No. PD-0659-15,
2018 WL 849164, at *5 (Tex. Crim. App. Feb. 14, 2018).
Overbreadth
Under the First Amendment overbreadth doctrine, “particularly where
conduct and not merely speech is involved, . . . the overbreadth of a statute must not
only be real, but substantial as well, judged in relation to the statute’s plainly
legitimate sweep.” Broadrick v. Okla., 413 U.S. 601, 615 (1973).
The First Amendment prohibits both government discrimination among
viewpoints and government prohibition of public discussion of an entire topic. Reed
v. Town of Gilbert, Ariz., 135 S.Ct. 2218, 2230 (2015). A statute that regulates
speech based upon its content is subject to strict scrutiny. Id. at 2227. Boyd contends
section 33.07(a) is content-based because it is necessary to examine the content of a
communication to determine whether a defendant violated section 33.07(a), in that
the defendant’s intent to harm, defraud, intimidate, or threaten a person by using
another person’s name or persona without the person’s consent to create a web page
on a commercial networking site may only be determined by examining the contents
of the web page. The Dallas Court of Appeals rejected this argument in Ex parte
Bradshaw, which held:
Critically, the only conduct regulated by section 33.07(a) is the act of assuming another person’s identity, without that person’s consent, with the intent to harm, defraud, intimidate, or threaten any person by creating a web page or posting or sending a message. Any subsequent “speech” related to that conduct is integral to criminal conduct and may be prevented and punished without violating the First Amendment. . . . 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.
501 S.W.3d 665, 674 (Tex. App.—Dallas 2016, pet. ref’d) (internal citations
omitted). Boyd suggests Bradshaw was incorrectly decided, and he argues that we
should adopt the reasoning of the dissenting justice in Ex parte Maddison, that
“[b]ecause you must look to the content of the speech, or into the mind of the speaker
(intent), to determine if the statute is violated, the prohibited speech is properly
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In The
Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-17-00366-CR NO. 09-17-00367-CR ____________________
EX PARTE JOSEPH BOYD
________________________________________________________________________
On Appeal from the 1A District Court Tyler County, Texas Trial Cause Nos. 13,067 and 13,068 ________________________________________________________________________
MEMORANDUM OPINION
In separate indictments, the State charged Joseph Boyd with committing
online impersonation. See Tex. Penal Code Ann. § 33.07(a) (West 2011). Boyd
challenged the facial constitutionality of the statute in a pre-trial application for writs
of habeas corpus. The trial court denied the application after conducting a hearing.
In his appeal, Boyd contends section 33.07(a) is unconstitutionally overbroad in
violation of the First Amendment and unconstitutionally vague in violation of the
Fourteenth Amendment. We affirm the trial court’s order.
Online Impersonation
The challenged statute provides:
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 (2) post or send one or more messages on or through a commercial social networking site or other Internet website, other than on or through an electronic mail program or message board program.
Tex. Penal Code Ann. § 33.07(a).
The indictment for Trial Cause Number 13,067 alleged that, on or about
August 22, 2013, Boyd “without obtaining the consent of [the complainant S.M.],1
. . . intentionally and knowingly use[d] the name and persona of the complainant to
create a web page on a social networking site, namely MeetMe.com with the intent
to harm [S.M.]” The indictment for Trial Cause Number 13,068 alleged that on or
about December 27, 2016, Boyd “without obtaining the consent of [the complainant,
R.S.] . . . intentionally and knowingly use[d] the name and persona of the
complainant to create a web page on a social networking site, namely Facebook with
1 To protect the privacy of the victims, we identify them by their initials. See Tex. Const. art. I, § 30(a)(1) (granting victims of crime “the right to be treated with fairness and with respect for the victim’s dignity and privacy throughout the criminal justice process”). 2
the intent to harm [R.S.]” Therefore, only the first subsection of section 33.07(a) is
at issue here.
Facial Challenge
A defendant may present a facial challenge to the constitutionality of a statute
that defines the offense charged by filing a pretrial application for a writ of habeas
corpus. Ex parte Thompson, 442 S.W.3d 325, 333 (Tex. Crim. App. 2014). A facial
challenge attacks the statute itself rather than the statute’s application to the
defendant. Peraza v. State, 467 S.W.3d 508, 514 (Tex. Crim. App. 2015) (quoting
City of Los Angeles v. Patel, 135 S.Ct. 2443, 2449 (2015)). Whether a statute is
facially constitutional is reviewed de novo as a question of law. Ex Parte Lo, 424
S.W.3d 10, 14 (Tex. Crim. App. 2013).
We begin with the presumption that the statute is valid and that the Legislature
has not acted unreasonably or arbitrarily in enacting the statute. Ex parte Granviel,
561 S.W.2d 503, 511 (Tex. Crim. App. 1978). Usually, the defendant bears the
burden to establish a statute’s unconstitutionality, and we make every reasonable
presumption in favor of the statute’s constitutionality, unless the contrary is clearly
shown. Peraza, 467 S.W.3d at 514. In the context of a challenge based upon the First
Amendment, however, the level of scrutiny depends upon whether a statute
constitutes a content-based regulation of expression. Thompson, 442 S.W.3d at 344.
When a statute distinguishes favored from disfavored speech based on the ideas
expressed, the content-based restriction is presumptively invalid and the State bears
the burden to rebut that presumption. Lo, 424 S.W.3d at 15.
When a statute is challenged for overbreadth or for vagueness, we construe
the challenged statute “in accordance with the plain meaning of its language unless
the language is ambiguous or the plain meaning leads to absurd results that the
Legislature could not possibly have intended.” Wagner v. State, No. PD-0659-15,
2018 WL 849164, at *5 (Tex. Crim. App. Feb. 14, 2018).
Overbreadth
Under the First Amendment overbreadth doctrine, “particularly where
conduct and not merely speech is involved, . . . the overbreadth of a statute must not
only be real, but substantial as well, judged in relation to the statute’s plainly
legitimate sweep.” Broadrick v. Okla., 413 U.S. 601, 615 (1973).
The First Amendment prohibits both government discrimination among
viewpoints and government prohibition of public discussion of an entire topic. Reed
v. Town of Gilbert, Ariz., 135 S.Ct. 2218, 2230 (2015). A statute that regulates
speech based upon its content is subject to strict scrutiny. Id. at 2227. Boyd contends
section 33.07(a) is content-based because it is necessary to examine the content of a
communication to determine whether a defendant violated section 33.07(a), in that
the defendant’s intent to harm, defraud, intimidate, or threaten a person by using
another person’s name or persona without the person’s consent to create a web page
on a commercial networking site may only be determined by examining the contents
of the web page. The Dallas Court of Appeals rejected this argument in Ex parte
Bradshaw, which held:
Critically, the only conduct regulated by section 33.07(a) is the act of assuming another person’s identity, without that person’s consent, with the intent to harm, defraud, intimidate, or threaten any person by creating a web page or posting or sending a message. Any subsequent “speech” related to that conduct is integral to criminal conduct and may be prevented and punished without violating the First Amendment. . . . 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.
501 S.W.3d 665, 674 (Tex. App.—Dallas 2016, pet. ref’d) (internal citations
omitted). Boyd suggests Bradshaw was incorrectly decided, and he argues that we
should adopt the reasoning of the dissenting justice in Ex parte Maddison, that
“[b]ecause you must look to the content of the speech, or into the mind of the speaker
(intent), to determine if the statute is violated, the prohibited speech is properly
characterized as content based.” 518 S.W.3d 630, 641 (Tex. App.—Waco 2017, pet.
ref’d) (Gray, C.J., dissenting). We decline to do so, as we agree with the majority
opinion in Maddison, which reasoned that any restriction on speech promotes a
significant government interest of protecting citizens from crime, fraud, defamation, 5
and threats from online impersonation, and serves a legitimate First Amendment
interest in regulating false and compelled speech on the part of the individual whose
identity has been appropriated. Id. at 639. Also, “because section 33.07(a) 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[.]” Id.
Boyd argues the vast sweep of the statute is protected speech, including satire,
criticism, news, and political speech. To the extent that one could argue that speech
is criminalized under the statute, it is crucial to note that the criminalized act would
be impersonating the speech of a person who did not consent to the appropriation of
his or her identity. See State v. Stubbs, 502 S.W.3d 218, 232 (Tex. App.—Houston
[14th Dist.] 2016, pet. ref’d). We conclude that section 33.07(a)(1) is not
unconstitutionally overbroad. Issue one is overruled.
Vagueness
Boyd contends that section 33.07(a) is unconstitutionally vague because
persons of common intelligence must necessarily guess at its meaning and differ
about its application. See Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
455 U.S. 489, 498 (1982). “A criminal law that implicates First Amendment
freedoms must: (1) be sufficiently clear to afford a person of ordinary intelligence a
reasonable opportunity to know what is prohibited, (2) establish determinate
guidelines for law enforcement, and (3) be sufficiently definite to avoid chilling
protected expression.” Ex parte Flores, 483 S.W.3d 632, 643 (Tex. App.—Houston
[14th Dist.] 2015, pet. ref’d).
In his habeas petition, Boyd argues, “Section 33.07 does not specify what sort
of harm must be intended to criminalize a webpage—fraud? [E]mbarrassment?
[H]urt feelings? Men of common intelligence must necessarily guess at its meaning
and differ as to its application.” In Bradshaw, the Dallas Court of Appeals held “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.” 501 S.W.3d at 678. Likewise, in Stubbs the Fourteenth
Court of Appeals concluded that
[a] person of ordinary intelligence can comprehend from the definition of ‘harm’ and from the language of section 33.07(a) that the prohibited conduct is use of someone else’s name or persona without her consent to create a web page or post a message online with intent to cause the enumerated types of data or computer damage, or anything reasonably regarded as or that might reasonably be suffered in the way of loss, disadvantage, or injury.
502 S.W.3d at 236. Furthermore, the inclusion of other words of intent—defraud,
intimidate, and threaten—“reflects the Legislature’s intent to target more intense
rather than less intent mental states.” Id. at 237. We agree with the reasoning and
conclusion of the Fifth Court of Appeals in Bradshaw and the Fourteenth Court of
Appeals in Stubbs. We overrule issue two and affirm the trial court’s order denying
relief on Boyd’s pretrial application for writs of habeas corpus.
AFFIRMED.
________________________________ CHARLES KREGER Justice
Submitted on December 20, 2017 Opinion Delivered March 28, 2018 Do Not Publish
Before Kreger, Horton, and Johnson, JJ.