 
 




                                         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.


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                                                               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”).
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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.

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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

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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,
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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

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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

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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.




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