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Ex parte Maddison

Court of Appeals of Texas, Tenth District

April 26, 2017

EX PARTE BILLY MACK MADDISON

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

          Before Chief Justice Gray, Justice Davis, and Justice Scoggins

          OPINION

          AL SCOGGINS, JUSTICE

         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 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 ...

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