Ex Parte: Douglas Arthur McCormick v. State ( 2016 )


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  • AFFIRM; and Opinion Filed October 21, 2016.
    S    In The
    Court of Appeals
    Fifth District of Texas at Dallas
    No. 05-16-00746-CR
    EX PARTE DOUGLAS ARTHUR MCCORMICK
    On Appeal from the 416th Judicial District Court
    Collin County, Texas
    Trial Court Cause No. 416-81830-2015
    MEMORANDUM OPINION
    Before Chief Justice Wright, Justice Fillmore, and Justice Brown
    Opinion by Justice Brown
    Douglas Arthur McCormick is charged with the offense of online impersonation. The
    indictment alleged that appellant intentionally and knowingly used T.M.J’s name or persona to
    create a web page, without obtaining T.M.J’s consent, and with the intent to harm, defraud,
    intimidate, or threaten T.M.J. See TEX. PENAL CODE ANN. § 33.07(a) (West Supp. 2016).
    Appellant filed a pretrial application for writ of habeas corpus challenging the constitutionality
    of section 33.07(a). The trial court denied relief on appellant’s application after a hearing. In
    three issues, appellant contends section 33.07(a) is facially unconstitutional because it is: (1)
    overbroad in violation of the First Amendment; (2) too vague to satisfy the Fifth and Fourteenth
    Amendments; and (3) violates the Dormant Commerce Clause.
    In his first issue, appellant contends section 33.07(a) is facially unconstitutional under the
    First Amendment because it is overbroad, restricts a substantial amount of protected speech
    based on the content of the speech, and cannot pass the strict scrutiny test. In his second issue,
    appellant argues the statute is facially unconstitutional for vagueness. He specifically challenges
    the statute’s use of an “all encompassing ‘harm’ standard,” and argues that the definition fails to
    provide persons of ordinary intelligence with fair notice of what the statute prohibits and
    authorizes or encourages seriously discriminatory enforcement. In his third issue, appellant
    argues the statute violates the Dormant Commerce Clause because it unduly burdens interstate
    commerce by attempting to place regulations on Internet users everywhere.
    We have recently decided these exact issues in a similar case. See Ex parte Bradshaw,
    No. 05-16-00570-CR, 
    2016 WL 4443714
    , at *6 (Tex. App.—Dallas Aug. 23, 2016, no pet. h.).
    In that case, the appellant used the persona of another, without that person’s consent, to establish
    multiple online profiles containing identifying personal information, including the victim’s cell
    phone number, and to post or send one or more messages on an Internet website with the intent
    to harm the victim. 
    Id. We concluded
    that section 33.07(a) was not overbroad or vague and did
    not violate the Dormant Commerce Clause. Id.; see also State v. Stubbs, No. 14-15-00510-CR,
    
    2016 WL 4217837
    , at *1–13 (Tex. App.—Houston [14th Dist.] Aug. 9, 2016, no pet. h.).
    Accordingly, we overrule appellant’s three issues.
    We affirm the trial court’s order denying relief on appellant’s pretrial application for writ
    of habeas corpus.
    /Ada Brown/
    ADA BROWN
    JUSTICE
    Do Not Publish
    TEX. R. APP. P. 47
    160746F.U05
    –2–
    S
    Court of Appeals
    Fifth District of Texas at Dallas
    JUDGMENT
    EX PARTE DOUGLAS ARTHUR                               On Appeal from the 416th Judicial District
    MCCORMICK                                             Court, Collin County, Texas
    Trial Court Cause No. 416-81830-2015.
    No. 05-16-00746-CR                                    Opinion delivered by Justice brown, Chief
    Justice Wright and Justice Fillmore
    participating.
    Based on the Court’s opinion of this date, the trial court’s order denying the relief sought
    by the pretrial application for writ of habeas corpus is AFFIRMED.
    Judgment entered this 21st day of October, 2016.
    –3–
    

Document Info

Docket Number: 05-16-00746-CR

Filed Date: 10/21/2016

Precedential Status: Precedential

Modified Date: 10/27/2016