Opinion issued July 6, 2023

In The

Court of Appeals 

For The

First District of Texas 

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NO. 01-20-00719-CR

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EX PARTE DAN TREVINO, Appellant

On Appeal from the 184th District Court

Harris County, Texas

Trial Court Case No. 1688208

MEMORANDUM OPINION

Appellant Dan Trevino was charged by complaint under Texas Penal Code 

section 33.07(a). He filed a pretrial application for writ of habeas corpus challenging 

the constitutionality of that statute and, on September 11, 2020, the trial court denied 

his application. On appeal, Trevino complains that the trial court erred in denying 
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his application for habeas relief because section 33.07(a) is facially overbroad. We 

affirm.

Trevino was charged with the offense of online impersonation, which contains 

the following elements:

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 

TEX. PENAL CODE § 33.07(a)(1). 

“A perpetrator of online impersonation is popularly referred to as a ‘catfish’—

someone who creates a fake online persona and uses it to lure the victim into an 

Internet romance or otherwise deceive others.” Kori Clanton, Note, We Are Not Who 

We Pretend to Be: ODR Alternative to Online Impersonation Statutes, 16 Cardozo 

J. Conflict Resol. 323, 323 (Fall 2014) (citations omitted). In the complaint against 

Trevino, the State charged that he “unlawfully, with the intent to harm, defraud, 

intimidate, and threaten,” used the name of the complainant Elena Trevino to create 

a web page on a commercial social networking site—AdultFriendFinder.com—

without obtaining the complainant’s consent.” 

Trevino complains that this statute is unconstitutional because it is a contentbased restriction on speech and is facially overbroad. Trevino acknowledges that 
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other courts have upheld the constitutionality of this statute but he contends those 

decisions were erroneous.

“A facial challenge to the constitutionality of a statute that defines the offense 

charged may be raised by means of a pretrial application for a writ of habeas corpus.” 

Ex parte Thompson, 442 S.W.3d 325, 333 (Tex. Crim. App. 2014). When an 

appellant raises a challenge to the facial constitutionality of a statute, it is a question 

of law that we review de novo. See Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. 

App. 2013). We must presume that the statute is valid and that the Legislature did 

not act unreasonably or arbitrarily. See id. at 14–15. The burden of demonstrating 

that a statute is unconstitutional rests on the party challenging the statute. See id. 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.” State v. Stubbs, 502 S.W.3d 218, 224 (Tex. App.—Houston [14th Dist.] 

2016, pet. ref’d) (quoting Ex parte Flores, 483 S.W.3d 632, 639 (Tex. App.—

Houston [14th Dist.] 2015, pet. ref’d). Where regulations are content-based, the 

presumption of validity is reversed, the statute is presumed invalid, and the State 

must rebut that presumption. Lo, 424 S.W.3d at 15.

A statute that suppresses or imposes burdens on speech based on its content 

is subject to strict scrutiny. Id. We may uphold such a regulation only if it is 
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necessary to serve a compelling state interest and the regulation employs the least 

speech-restrictive means to achieve its goal. Flores, 483 S.W.3d at 639. If, on the 

other hand, the statute is content-neutral and regulates only the “time, place, and 

manner of speech” as well as regulates without reference to the content of the speech, 

the regulation receives intermediate scrutiny. Id. at 639 (citing Turner Broad. Sys., 

Inc. v. F.C.C., 512 U.S. 622, 642 (1994) and Ward v. Rock Against Racism, 491 U.S. 

781, 791 (1989)). 

“Government regulation of speech is content based if a law applies to 

particular speech because of the topic discussed or the idea or message expressed.” 

Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 163 (2015). Thus, a court considering 

a regulation must determine whether the regulation “on its face” draws a distinction

based on the message the speaker conveys. See id. Some facial distinctions are 

obvious, where the regulated speech is defined by subject matter, or more subtly, 

“defining regulated speech by its function or purpose.” See id. Both distinctions are 

based on the message conveyed and therefore, are content-based and subject to strict 

scrutiny. See id. at 163–64. 

A number of appellate courts have addressed the issue presented here and 

upheld the constitutionality of section 33.07. See, e.g., Ex parte Maddison, 518 

S.W.3d 630, 639–40 (Tex. App.—Waco 2017, pet. ref’d) (reversing trial court’s 

finding that section 33.07 was unconstitutional and holding that section 33.07 is not 
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facially overbroad or unconstitutionally vague); Stubbs, 502 S.W.3d at 233, 235, 238 

(upholding statute as content-neutral, not facially overbroad, and not 

unconstitutionally vague); Ex parte Bradshaw, 501 S.W.3d 665, 677–78, 680 (Tex. 

App.—Dallas 2016, pet. ref’d) (upholding statute as not overbroad, not 

unconstitutionally vague, and not violative of the Dormant Commerce Clause). 

Despite this authority upholding the constitutionality of section 33.07, 

Trevino argues that these courts misapplied the Supreme Court’s overbreadth 

analysis. Trevino first contends that section 33.07 regulates protected speech 

because it concerns the content of web pages, including the underlying computer 

code, which constitute speech. But the courts have determined that the plain text of 

the statute concerns speech and that because the statute reaches some protected 

speech the court was required to determine whether the statute was content-based or 

content neutral. See Stubbs, 502 S.W.3d at 229. 

Because Trevino is making a facial challenge, we must look to the statute on 

its face, and facially the statute does not mention a particular topic or subject matter 

of speech that would be restricted. See id. at 230. Moreover, the statute does not, 

on its face, discriminate on the basis of any particular viewpoint or prohibit a 

particular subject matter. See id. Based on this lack of regulation of the content of 

speech, Texas courts have held that Section 33.07 is not a content-based regulation 

and therefore, is not subject to strict scrutiny. See, e.g., id. at 229–31; Ex parte Hall, 
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No. 03-18-00731-CR, 2019 WL 1925902, at * 4 (Tex. App.—Austin May 1, 2019, 

pet. ref’d) (mem. op.; not designated for publication); Ex parte Backus, No. 05-16-

00517-CR, 2016 WL 4444627, at *1 (Tex. App.—Dallas Aug. 23, 2016, pet. ref’d)

(mem. op.; not designated for publication); Ex parte McCormick, No. 05-16-00746-

CR, 2016 WL 6135522, at *1 (Tex. App.—Dallas Oct. 21, 2016, pet. ref’d) (mem. 

op.; not designated for publication). We agree with the holdings of these Texas 

courts that Section 33.07 is not a content-based regulation. 

“A statute or ordinance is facially overbroad if it reaches a substantial amount

of constitutionally protected conduct, such as speech or conduct protected by the 

First Amendment.” Stubbs, 502 S.W.3d at 232. A court will not invalidate a statute 

for overbreadth merely because there might be some possible unconstitutional 

applications. See id. Instead, a statute “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.” Id. Thus, we will uphold the statute if 

there is a reasonable construction that renders it constitutional. See id.

In Stubbs, the court held that the online impersonation statute “serves a 

significant governmental interest” because it proscribes “malicious conduct 

associated with the nonconsensual usage of someone else’s name or persona to 

create a web page or post or sent a message on a commercial social networking site 

or other Internet website.” Id. And the statute proscribes conduct performed with 
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criminal intent. See id. at 233. “Actually using someone’s name or persona without 

her consent to create a web page or post or send a message on or through a 

commercial social networking site or other Internet website with criminal intent 

means that what may have previously been mere thoughts instead are now thoughts 

put into and which accompany punishable actions.” Id. at 234. 

Trevino offers hypothetical examples of unconstitutional applications of the 

statute such as web pages criticizing political figures and claims that “[t]he harm 

done (and presumably intended) by the speech . . . . is hurt feelings—annoyance and 

embarrassment.” But hypothetical possibilities do not demonstrate a realistic danger 

that the statute’s application will be overly broad and we will not invalidate section 

33.07 for overbreadth merely because there might be some possible unconstitutional 

applications. See id. at 232. We conclude that Trevino has not established that 

Section 33.07(a) is facially overbroad. 

We affirm the trial court’s denial of Trevino’s application for writ of habeas 

corpus. Any pending motions are dismissed as moot. 

Peter Kelly

Justice

Panel consists of Justices Kelly, Countiss, and Rivas-Molloy. Opinion delivered 

by Justice Kelly.

Do not publish. TEX. R. APP. P. 47.2(b).