the 19th District Court McLennan County, Texas Trial Court
Chief Justice Gray, Justice Davis, and Justice Scoggins
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.
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.Accordingly, we reverse and remand.
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).
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).
February 25, 2016, the trial court signed an order granting
Maddison habeas relief. In its order, the trial court stated
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
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 ...