Ex parte Maddison

• Citation: 518 S.W.3d 630
• Decision Date: 26 April 2017
• Docket Number: No. 10-16-00081-CR,10-16-00081-CR
• Parties: EX PARTE Billy Mack MADDISON
• Court: Court of Appeals of Texas

518 S.W.3d 630

EX PARTE Billy Mack MADDISON

No. 10-16-00081-CR

Court of Appeals of Texas, Waco.

Opinion delivered and filed April 26, 2017

Discretionary Review Refused June 14, 2017

Gabriel Price, Sterling A. Harmon, Seminole, Abel Reyna, Lubbock, for State of Texas.

Mark W. Bennett, Houston, Nina Patterson, Waco, for Appellee.

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 must be narrowly drawn and serve a compelling state interest. Sec. 33.07 fails on both fronts.

....

Because the Court has found Section 33.07 of the Penal Code unconstitutionally overbroad and vague, it is not necessary to reach the Applicant's third point that the statute unduly burdens interstate commerce.

This appeal followed.

II. OVERBREADTH

In one issue, the State argues that trial court erred in granting Maddison's application for writ of habeas corpus and declaring section 33.07 unconstitutional based on overbreadth and vagueness. And though the trial court did not reach Maddison's argument under the Dormant Commerce Clause, the State nevertheless contends that section 33.07 does not "unduly burden interstate commerce by attempting to place regulations on the entirety of the Internet, thus violating the Dormant Commerce Clause."

At the outset of our analysis, we note that Maddison was only charged under section 33.07(a)(1) ; thus, he could only challenge the constitutionality of section 33.07(a)(1), not the remainder of the statute. Accordingly, the trial court did not have jurisdiction to declare all of section 33.07 unconstitutional, but rather only subsection (a)(1). See State v. Stubbs , 502 S.W.3d 218, 223-24 (Tex. App.—Houston [14th Dist.] 2016, pet. ref'd) (citing Limon v. State , 947 S.W.2d 620, 625 (Tex. App.—Austin 1997, no writ) ; State v. Cannady , 913 S.W.2d 741, 745 (Tex. App.—Corpus Christi 1996), aff'd , 11 S.W.3d 205 (Tex. Crim. App. 2000), cert. denied , 560 U.S. 920, 130 S.Ct. 3317, 176 L.Ed.2d 1215 (2010) ). We now analyze the State's overbreadth argument.

A. Applicable Law

"Whether a statute is facially constitutional is a question of law that we review de novo." Id. at 224 (citing Ex Parte Lo , 424 S.W.3d 10, 14 (Tex. Crim. App. 2013) ). When presented with a challenge to the constitutionality of a statute, we presume that the statute is valid and that the Legislature has not acted arbitrarily or unreasonably. Ex Parte Lo , 424 S.W.3d at 14-15 ; see Ex parte Flores , 483 S.W.3d 632, 638 (Tex. App.—Houston [14th Dist.] 2015, pet. ref'd) (citing Rodriguez v. State , 93 S.W.3d 60, 69 (Tex. Crim. App. 2002) ). Typically, the party challenging the statute has the burden to establish its unconstitutionality. Ex parte Lo , 424 S.W.3d at 15.

The First Amendment—which prohibits laws "abridging the freedom of speech"—limits the government's power to regulate speech based on its substantive content. Ex parte Flores , 483 S.W.3d at 639 ; see U.S. CONST. amend. I ; Reed v. Town of Gilbert, Ariz. , ––– U.S. ––––, 135 S.Ct. 2218, 2226, 192 L.Ed.2d 236 (2015). Content-based regulations are those that distinguish favored from disfavored speech based on the idea or message expressed. Ex parte Lo , 424 S.W.3d at 15 ; Ex parte Flores , 483 S.W.3d at 639. Content-based regulations operate to restrict particular viewpoints or public discussion of an entire topic or subject matter. SeeReed , ––– U.S. ––––, 135 S.Ct. at 2229-30, 192 L.Ed.2d 236. In these situations, the usual presumption of constitutionality is reversed; the content-based statute is presumed invalid, and the State bears the burden to rebut this presumption. Ex Parte Lo , 424 S.W.3d at 15 ; Ex parte Flores , 483 S.W.3d at 639.

A statute that suppresses, disadvantages, or imposes differential burdens upon speech because of its content is subject to the most exacting or strict scrutiny. Ex parte Lo , 424 S.W.3d at 15 (citing Turner Broad. Sys., Inc. v. F.C.C. , 512 U.S. 622, 642, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) ). Such a regulation may be upheld only if it is necessary to serve a compelling state interest and employs the least speech-restrictive means to achieve its goal. Id. Content-neutral regulation of the time, place, and manner of speech, as well as regulation of speech that can be justified without reference to its content, receives intermediate scrutiny. Ex parte Flores , 483 S.W.3d at 639 (citing Turner Broad., Sys. , 512 U.S. at 642, 114 S.Ct. 2445, and Ward v. Rock Against Racism , 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) ). Such a regulation is permissible if it promotes a significant governmental interest and does not burden substantially more speech than necessary to further that interest. Id. (citing McCullen v. Coakley , ––– U.S. ––––, 134 S.Ct. 2518, 2534-35, 189 L.Ed.2d 502 (2014), and Ex parte Thompson , 442 S.W.3d at 344 ).

Stubbs , 502 S.W.3d at 224-25.

When a party challenges a statute as both overbroad and vague, we first consider the overbreadth challenge. See Ex parte Flores , 483 S.W.3d at 643. The overbreadth doctrine is strong medicine that is used sparingly and only as a last resort. State v. Johnson , 475 S.W.3d 860, 865 (Tex. Crim. App. 2015) ; see also New York State Club Ass'n, Inc. v. City of New York , 487 U.S. 1, 14, 108 S.Ct. 2225, 101 L.Ed.2d 1 (1988). To be unconstitutionally overbroad, "the statute must prohibit a substantial amount of protected expression, and the danger that the statute will be unconstitutionally applied must be realistic and not based on ‘fanciful hypotheticals.’ " Johnson , 475 S.W.3d at 865 (quoting United States v. Stevens , 559 U.S. 460, 485, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) (Alito, J., dissenting)). Laws that inhibit the exercise of First Amendment rights will be held facially overbroad only if the impermissible applications of the law are real and substantial when judged in relation to the statute's plainly legitimate sweep. See Ex parte Flores , 483 S.W.3d at 643 (citing Broadrick v. Okla. , 413 U.S. 601, 612-15, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973) ). An overbreadth challenge will rarely, if ever, succeed against a statute "that is not specifically addressed to speech or to conduct that it necessarily associated with speech (such as picketing or demonstrating)." Johnson , 475 S.W.3d at 865 (quoting...