What is cyber harassment under PC § 33.07?
Texas Penal Code § 33.07 — online impersonation — punishes use of another person's name or persona on websites and social-media (3rd-degree felony) or through electronic communications (Class A misdemeanor), with intent to harm, defraud, intimidate, or threaten. It was enacted in 2009 and expanded in 2017 to cover "any other persona."
- Section 33.07(a) — website/social-media impersonation
- The 3rd-degree felony tier. The defendant must use "the name or persona of another person" to create a web page on or post one or more messages on a "commercial social-networking site" (defined in § 33.07(f)(1)) or any other internet website, with intent to harm, defraud, intimidate, or threaten any person, without that person's consent. The platform element is dispositive — a public-facing impersonation post or fake profile triggers the felony grade; the same content sent through a private email or text triggers only the misdemeanor grade under (b). Punishment under § 12.34: 2 to 10 years in TDCJ and an optional fine up to $10,000.
- Section 33.07(b) — electronic-communications impersonation
- The Class A misdemeanor tier. The defendant must send "an electronic mail, instant message, text message, or similar communication that references a name, domain address, phone number, or other item of identifying information" of another person without that person's consent, with intent to cause a recipient to reasonably believe that the other person authorized or transmitted the communication, and with intent to harm or defraud. The intent verbs are narrower than (a) — only "harm or defraud," not "intimidate or threaten." Punishment under § 12.21: up to 1 year in county jail and an optional fine up to $4,000.
- "Persona" definition — § 33.07(f)(2)
- After the 2017 amendments (Acts 2017, 85th Leg., ch. 685), "persona" is defined as "the name, image, likeness, persona, or other identifying characteristic of an actual person." This sweeping definition reaches not only stolen names and stolen photos, but also synthesized images and AI-generated likeness content of identifiable real persons. The 2017 expansion was prompted by emerging deepfake technology and effectively created Texas's first criminal liability tier for non-consensual identity synthesis. Defense work on § 33.07(a) cases now routinely involves identification expert testimony about whether the contested image or content actually represents the complainant.
- Specific-intent requirement
- Section 33.07(a) requires intent to harm, defraud, intimidate, or threaten; § 33.07(b) requires intent to harm or defraud plus the additional intent that the recipient reasonably believe the impersonated person authorized the communication. These are specific-intent statutes — the State must prove the defendant's subjective purpose, not merely that the conduct objectively could have produced harm. Ex parte Maddison, 518 S.W.3d 630 (Tex. App.—Waco 2017, pet. ref'd), explicitly relied on the specific-intent requirement to defeat a facial overbreadth challenge — narrowing the statute to a constitutionally permissible core.
Section 33.07 occupies a distinctive position in Texas criminal law. It is not a pure speech offense — it punishes use of identifying data plus specific intent — but its application reaches into expressive activity (parody, criticism, political commentary, fan-art, satire) often enough that First Amendment overbreadth and as-applied challenges are routine. It is not a pure computer-crime statute — Chapter 33 of the Penal Code is broader than that — but it sits structurally alongside § 33.02 (breach of computer security) and § 33.021 (online solicitation of a minor). And it is not a pure threat or harassment statute — Chapter 42 of the Penal Code already covers harassment under § 42.07 and stalking under § 42.072 — but it overlaps both, sometimes producing dual or alternative charging on the same incident.
The statute was enacted in 2009 in response to a wave of fake-profile impersonation cases — typically targeting ex-partners, former co-workers, or public figures — that traditional harassment and stalking statutes did not cleanly reach. The 2017 expansion broadened the "persona" definition to cover synthesized imagery and effectively addressed early deepfake-style content. A 2023 amendment to Texas's separate § 21.165 (unlawful disclosure of intimate visual material) explicitly added deepfake liability for non-consensual intimate imagery, but § 33.07 remains the workhorse statute for non-sexual impersonation conduct. Cases regularly involve revenge accounts, fake professional profiles, false attribution of statements (often political), and impersonating posts intended to damage the complainant's reputation, employment, or relationships.
Elements and intent — what the State must prove
Section 33.07 is a specific-intent statute. The State must prove use of another person's name or persona, the absence of that person's consent, the platform (website/social-media for the felony tier; private electronic communication for the misdemeanor tier), and the specific intent to harm, defraud, intimidate, or threaten.
The element-by-element burden under § 33.07(a) breaks down into four discrete proof requirements, each of which produces independent litigation opportunities. First, use of the name or persona of another person. The complainant must be an actual person — purely fictional or composite identities do not satisfy the element. The "persona" definition under § 33.07(f)(2) — name, image, likeness, persona, or other identifying characteristic — is broad, but the prosecution still must connect the contested content to the complainant's identity through evidence sufficient for a rational jury beyond a reasonable doubt. In cases involving altered or partial likenesses, identification expert testimony is sometimes dispositive.
Second, the absence of consent. The complainant must testify (or other evidence must establish) that the use was without the complainant's permission. This element is occasionally contested in cases involving former relationships where the complainant initially shared the photo or content for one purpose and the defendant repurposed it. The implicit-consent argument is rarely successful — courts read § 33.07 to require affirmative consent to the specific use — but the surrounding factual record on the relationship can affect the credibility analysis at trial.
Third, the platform. Under § 33.07(a), the conduct must occur via a "commercial social-networking site" or other internet website — i.e., a publicly accessible page or post. Under § 33.07(b), the conduct must occur via private electronic communication (email, text, IM, SMS). The platform element is grade-determinative: the same content distributed on the same day to the same audience triggers very different exposure depending on the channel. A fake Facebook profile is a felony exposure; a series of impersonating text messages from a spoofed-name account is a misdemeanor exposure. Charging documents that allege both tiers as alternatives are routinely seen.
Fourth, specific intent. Section 33.07(a) requires intent to harm, defraud, intimidate, or threaten any person — four alternative theories. Section 33.07(b) requires intent to harm or defraud plus intent that the recipient reasonably believe the impersonated person authorized the communication. Specific intent is the most-litigated element in any contested § 33.07 case. The State proves it through circumstantial evidence — the content of the posts, the timing relative to a relationship breakdown or dispute, the volume of activity, statements made to others, communications between the defendant and the complainant, and similar inferences. The defense often counters with evidence of legitimate alternative motives — parody, satire, criticism of public conduct, mistake about identity, or third-party access to the account.
Distinction from § 42.07(a)(7) electronic-communications harassment
Section 42.07(a)(7) — electronic-communications harassment — frequently overlaps with § 33.07 but covers different conduct. Section 42.07 punishes repeated electronic communications "in a manner reasonably likely to harass" the recipient. Section 33.07 punishes impersonation regardless of repetition. The two statutes are routinely charged in the alternative.
Texas prosecutors regularly file both § 33.07 and § 42.07 in the same case, and the relationship between the two statutes is among the most important strategic questions in any electronic-harassment defense. Section 42.07(a)(7) makes it an offense to send repeated electronic communications "in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another." Baseline grade is Class B misdemeanor under § 42.07(c). Enhancement to Class A applies if the actor has a prior § 42.07 conviction, has violated a court order under chapter 7A of the Code of Criminal Procedure, or if the recipient is a child younger than 18 with intent that the child reasonably believe an adult sent the communication.
The doctrinal contrast: § 42.07(a)(7) is a course-of-conduct harassment statute focused on repetition and effect, while § 33.07 is a use-of-identity statute focused on the act of impersonation regardless of repetition. A single impersonating post can be a § 33.07 felony; a single harassing message cannot be a § 42.07 offense (the statute requires repeated communications). Conversely, repeated harassing messages sent from the defendant's own account cannot be a § 33.07 offense (no impersonation), but they can be a § 42.07 offense. Cases in which the defendant repeatedly sent impersonating communications fall within both statutes — and the State frequently indicts both, with § 33.07 as the headline felony and § 42.07 as a misdemeanor-tier alternative.
Ex parte Sanders, 663 S.W.3d 197 (Tex. Crim. App. 2022), and Ex parte Barton, 662 S.W.3d 876 (Tex. Crim. App. 2022), are the two Court-of-Criminal-Appeals decisions upholding § 42.07(a)(7) against First Amendment overbreadth challenges. Both decisions emphasized that § 42.07(a)(7) targets non-expressive harassment conduct rather than protected speech, that the statute's scienter requirement narrows its scope, and that the captive-audience interest justifies the regulation. Defense counsel preserves both Sanders and Barton for further constitutional review while developing as-applied challenges specific to the defendant's facts.
The charge-bargaining implication: a § 33.07 felony indictment can frequently be pleaded down to a § 42.07 misdemeanor, preserving most of the factual narrative while collapsing the exposure from 2-10 years to up to 1 year in county jail. Where the State's identification proof on § 33.07 is weakest (impersonation hard to prove), but the harassment-by-volume proof is strongest, the plea-bargaining leverage tilts in favor of a § 42.07 resolution. Defense counsel use this asymmetry deliberately — early development of identification and account-attribution challenges puts § 33.07 felony exposure under pressure and creates room to negotiate to the § 42.07 misdemeanor.
First Amendment challenges — Maddison , Bradshaw, and the overbreadth framework
Section 33.07 has been challenged repeatedly on First Amendment grounds. Ex parte Maddison and Ex parte Bradshaw upheld the statute against facial overbreadth challenges, but as-applied challenges remain available — particularly for parody, satire, and political-speech cases.
Ex parte Bradshaw, 501 S.W.3d 665 (Tex. App.—Dallas 2016, pet. ref'd), is the first Texas intermediate-appellate decision to address a First Amendment overbreadth challenge to § 33.07. The Fifth Court of Appeals held that the statute targets identity-data conduct rather than pure expressive activity, that the specific-intent element narrows the sweep sufficiently to survive constitutional scrutiny, and that any incidental burden on protected speech is justified by the State's interest in preventing harm and fraud. The court rejected the argument that the statute reaches a substantial amount of protected expressive activity (parody, satire, political speech). Petition for discretionary review was refused.
Ex parte Maddison, 518 S.W.3d 630 (Tex. App.—Waco 2017, pet. ref'd), reached substantially the same conclusion through more developed reasoning. The Tenth Court of Appeals applied the controlling Texas Court of Criminal Appeals overbreadth framework from State v. Johnson, 475 S.W.3d 860 (Tex. Crim. App. 2015), and Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013) — the test asks whether the statute's overbreadth, judged in relation to its plainly legitimate sweep, is substantial. Maddison concluded it is not, again emphasizing that the specific-intent requirement (harm, defraud, intimidate, threaten) narrows the statute to a constitutionally permissible core.
Both decisions are pet-refused intermediate authority, which gives them persuasive but not binding statewide weight. Defense counsel routinely preserve facial overbreadth, facial vagueness, and as-applied First Amendment challenges in any § 33.07 case where the underlying conduct has any expressive component — political commentary, parody of public figures, criticism of public officials, satire, performance art, journalism. As-applied challenges are particularly fertile in parody and public-figure-criticism cases where the complainant's public role and the defendant's commentary purpose can be developed through pretrial evidentiary hearings.
The post-Counterman v. Colorado, 600 U.S. 66 (2023), framework adds an additional First Amendment overlay where the State pursues the "intimidate or threaten" intent theory under § 33.07(a). Counterman requires subjective-recklessness mens rea for any criminal threat prosecution — at minimum, the defendant must have been aware that the communication could be perceived as a threat and consciously disregarded that risk. Texas appellate courts post-Counterman are working through how the subjective-recklessness floor interacts with the specific-intent element of § 33.07. The defense argues that even though § 33.07 is a specific-intent statute, applying it to a defendant who lacked the Counterman-required subjective awareness violates the First Amendment. The State responds that the specific-intent element already requires more than subjective recklessness and therefore satisfies Counterman. The resolution is unsettled, and the defense preserves the issue for further review in every § 33.07 case involving threat-based intent theories.
Defense strategies — what wins § 33.07 cases
Section 33.07 defense work breaks down into seven dominant strategies: First Amendment overbreadth/as-applied challenges; Counterman subjective-recklessness mens-rea attack; insufficient specific-intent proof; identification and account-hijack challenges; mens-rea attack on harm/defraud/intimidate; charge-bargaining to § 42.07; and Fourth Amendment suppression of social-media subpoena returns.
The strongest defenses tend to cluster around the specific-intent element. Section 33.07(a) requires that the defendant act with intent to harm, defraud, intimidate, or threaten — and each of those verbs is independently litigable. Where the defendant's conduct can be plausibly recharacterized as parody, satire, political criticism, performance art, journalism, or research, the specific-intent narrative collapses. Defense counsel develop a contrary-intent narrative through the defendant's own statements (where the privilege analysis allows), social-media activity outside the charged conduct, prior expressive work, and contextual evidence showing the defendant's purpose. The State must prove the specific intent beyond a reasonable doubt; "reasonable alternative motive" arguments often succeed at trial even when the underlying conduct is uncontested.
Identification and account-attribution challenges are the second pillar of § 33.07 defense. The State must prove that the defendant — not a third party with access to the defendant's device or account — created and posted the contested content. Account-hijack defenses (someone else used my account), shared-credential defenses (multiple people had login access), and IP/device-attribution disputes (the post came from a device the defendant did not exclusively control) are all factually intensive but often successful where the State's digital-forensics record is thin. Subpoena returns from social-media platforms produce IP-address data, login records, device fingerprints, and metadata that the defense investigates aggressively. Where the State cannot tie the contested content to the defendant's exclusive control of the posting device or account, reasonable doubt follows.
The First Amendment defense — both facial overbreadth and as-applied — is the third pillar. Ex parte Bradshaw and Ex parte Maddison reject facial challenges, but as-applied challenges are alive and well, particularly in cases involving parody, satire, public-figure criticism, and political commentary. The defense files pretrial motions to quash the indictment on First Amendment grounds, develops the expressive-character record at evidentiary hearings, and preserves the constitutional issue for appellate review even when the trial-court motion is denied. Counterman v. Colorado, 600 U.S. 66 (2023), provides additional leverage in any case involving the "intimidate or threaten" intent theory by requiring subjective-recklessness mens rea at minimum.
Plea-bargaining posture frequently leverages all of these strategies in combination. A § 33.07 felony indictment with weak identification proof, contestable specific-intent evidence, and an expressive-conduct component is a strong candidate for a charge-down plea to § 42.07 misdemeanor harassment or, in some cases, complete dismissal. Defense counsel build the trial record — through pretrial motions, identification expert work, and content-analysis evidence — to put felony exposure under pressure and create plea-negotiation leverage.
Counterman v. Colorado and the mens rea floor for cyber-threat cases
Counterman v. Colorado, 600 U.S. 66 (2023), held that the First Amendment requires subjective-recklessness mens rea before a state may criminalize true-threat speech. The decision directly affects § 33.07 cases involving the "intimidate or threaten" intent theory and § 42.07 cases involving threatening communications.
Counterman v. Colorado, 600 U.S. 66 (2023), reversed a Colorado stalking conviction (Billy Counterman sent hundreds of unsolicited Facebook messages to a musician over two years; some messages were facially threatening). The Colorado trial court applied a purely objective "reasonable-person" standard — would a reasonable recipient view the communications as a threat. The U.S. Supreme Court held that an objective standard, without any subjective mens-rea element, violates the First Amendment. At minimum, the prosecution must prove subjective recklessness — that the defendant was aware that the recipients could reasonably regard the communications as threats and consciously disregarded that risk.
Counterman rejected the higher specific-intent floor that the defense had urged (the defendant intended to threaten) and the lower objective-only floor that Colorado had applied (a reasonable person would perceive the threat). The Court located the constitutional minimum at subjective recklessness — borrowed from the speech-related "actual malice" framework in New York Times Co. v. Sullivan, 376 U.S. 254 (1964). The decision applies to any state criminal threat statute, including the threat-component theories under § 33.07(a) ("intent to intimidate or threaten"), § 42.07 electronic harassment, § 42.072 stalking, and § 22.07 terroristic threat.
The Texas appellate-court working-through of Counterman's implications is ongoing. For § 33.07 specifically, the most direct application is to the "intimidate or threaten" intent prongs. If the State elects to pursue intent-to-intimidate or intent-to-threaten, the defense argues — and most Texas trial courts are receptive to the argument — that the State must prove subjective awareness consistent with Counterman. Whether § 33.07's specific-intent element already exceeds the Counterman floor (so that Counterman adds nothing new) or whether the specific-intent and subjective-awareness analyses operate independently is a developing question. Defense counsel preserve the issue for review in every applicable case.
A practical consequence: in cases where the State's intent theory is "harm" or "defraud" (rather than "intimidate" or "threaten"), the Counterman mens-rea overlay does not directly apply — those theories do not implicate the true-threat doctrine. The defense argument shifts to standard First Amendment overbreadth analysis under Maddison/Bradshaw. The choice of intent theory by the State therefore drives the constitutional analysis: an "intimidate or threaten" theory invites Counterman; a "harm or defraud" theory does not. Defense counsel observe carefully what intent theory the State has charged and which theory the State emphasizes at trial, because the appellate landscape changes depending on which prong of § 33.07(a) is at issue.
Local DFW practice — revenge accounts , school threats, and parallel proceedings
DFW courts see § 33.07 cases concentrated in four recurring fact patterns: ex-partner revenge accounts, school-related threats and impersonation, workplace-dispute impersonation, and parallel-proceedings (divorce, custody, employment-litigation) impersonation. Each presents different defense and case-management considerations.
Ex-partner revenge accounts are the most common fact pattern in Collin, Dallas, Denton, and Tarrant County § 33.07 prosecutions. A relationship ends contentiously; one party creates a fake social-media profile in the other's name, posts embarrassing or compromising content, contacts the other's employer or family with damaging false statements, or registers vendor accounts in the other's name to disrupt the other's life. The State's identification proof is usually strong (devices, IP addresses, login records connect to the defendant); the contested element is typically specific intent and, occasionally, the consent question (the impersonated content was originally shared during the relationship). Defense work focuses on contextual narrative, identification evidence around shared-device use during the relationship, and mitigation positioning at sentencing.
School-related impersonation cases form the second cluster — typically involving high-school or college-age defendants who create fake profiles, send impersonating messages, or post fake threats in the name of another student, a teacher, or an administrator. These cases often blend with § 22.07 terroristic threat charges where the impersonating content includes specific violence threats. The Counterman subjective-recklessness analysis is directly applicable to threat-overlay charges; the school-administrative context (Title IX procedures, school-discipline proceedings, ISD investigations) runs in parallel with criminal prosecution and complicates the defense's sequencing decisions. Counsel routinely coordinate with educational-rights counsel on parallel-track issues.
Workplace-dispute impersonation cases — fake LinkedIn profiles created in a co-worker's name to damage their professional reputation, false email accounts opened in a supervisor's name to mislead clients, or impersonating posts on review sites to harm a business — make up a third cluster. The State's identification proof is sometimes weaker in these cases because workplace devices and shared accounts complicate the attribution analysis. Specific-intent proof is often contested on grounds of competitive purpose vs. harm-intent. Federal companion charges under 18 U.S.C. § 1030 (Computer Fraud and Abuse Act) or wire-fraud statutes occasionally appear where interstate commerce or the employer's computer network is implicated.
Parallel-proceedings impersonation — divorce, custody, employment-litigation, or business-dispute contexts — is the fourth cluster, and it presents the most complex case-management challenges. The civil litigation's discovery record can be a substantial advantage or disadvantage to the criminal defense, depending on what was disclosed pretrial in the civil case. Statements made under oath in the civil case may be relevant in the criminal prosecution; communications produced in civil discovery may surface in the State's case-in-chief. Defense counsel coordinate immediately with civil counsel on Fifth Amendment posture, discovery sequencing, and the timing of any settlement or resolution of the civil matter relative to the criminal disposition. Bond conditions in the criminal case may interact with custody or restraining-order provisions in the civil matter; missteps on either side can produce contempt or bond-revocation exposure.
When to retain counsel — and why timing matters
Retain counsel immediately on any § 33.07 investigation — before any law-enforcement interview, before any subpoena response, before any statement on social media about the investigation. Early intervention shapes the identification, intent, and digital-evidence record on which the entire case will turn.
Section 33.07 investigations almost always involve a substantial digital-evidence buildup before the defendant first knows of the prosecution. Law enforcement subpoenas social-media platforms, email providers, and ISPs; assembles IP address and device-fingerprint records; obtains content via search warrants on the platforms' record-custodian processes; and develops a timeline of the contested conduct. By the time the defendant is contacted, the State's case foundation is often substantially complete. Retaining counsel at the earliest possible point — even before any formal contact — allows the defense to begin its own evidence preservation, to control the defendant's communications about the matter, and to plan the response to any investigative interview request.
Custodial-interrogation considerations are critical. Section 33.07 investigations do not typically begin with a traffic stop or warrant arrest — they begin with a detective contact, often by phone, sometimes by email, sometimes via voluntary-interview invitation. The defendant's instinct to "explain the situation" or "clear up the misunderstanding" is uniformly damaging. Texas law-enforcement officers are trained to obtain statements that confirm identification (the defendant admits posting), that confirm specific intent (the defendant explains the post's purpose), or that establish absence-of-consent context. Any statement made before counsel is retained becomes a fixed feature of the State's case. Defense counsel's first instruction is invariably to decline all law-enforcement contact and to invoke the right to counsel.
Social-media posture during the investigation is the second critical timing issue. Defendants who continue to post on social media — even on topics unrelated to the underlying matter — produce additional evidence the State can use. Posts that comment on the investigation itself, posts that reference the complainant in any way, and posts that the State could later argue evidence consciousness-of-guilt are particularly damaging. Defense counsel routinely advise complete social-media silence on any topic that could be connected to the investigation, and complete avoidance of contact with the complainant (direct or indirect, including through third parties). Bond conditions usually formalize the contact-prohibition; voluntary compliance with similar restrictions before bond is a routine defense recommendation.
The defense investigation must run in parallel with the State's. Subpoenas to the platforms, ISPs, and device manufacturers — issued by the defense, not by the State — produce independent verification of identification, attribution, and intent evidence. Forensic imaging of any defendant device that might contain relevant data prevents data loss and creates the record for any expert testimony about device-attribution disputes. Witnesses who might support a parody, satire, or other expressive-purpose narrative are identified, interviewed, and preserved. All of this work proceeds most effectively when counsel is engaged early — ideally within 48-72 hours of the defendant's first awareness of the investigation, and certainly before any law-enforcement contact or any subpoena response is due.
