In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00461-CR
___________________________
MATTHEW NICHOLAS SLOAN, Appellant
V.
THE STATE OF TEXAS
On Appeal from Criminal District Court No. 2
Tarrant County, Texas
Trial Court No. 1424732D
Before Sudderth, C.J.; Womack and Wallach, JJ.
Memorandum Opinion by Justice Wallach
MEMORANDUM OPINION
After receiving deferred-adjudication community supervision for state-jail-
felony theft, Appellant Matthew Nicholas Sloan violated the terms of his community
supervision by committing a new offense: credit-card or debit-card abuse. In a single
point, Sloan now contends that he received ineffective assistance of counsel at his
adjudication hearing because his attorney did not move to suppress the evidence of
his credit-card or debit-card abuse, even though Sloan claims this evidence was
unconstitutionally seized from his hotel room. However, Sloan’s challenge suffers
from a fatal flaw common to ineffective-assistance claims raised on direct appeal: an
insufficiently developed record. Therefore, after correcting clerical errors in the
judgment sua sponte, we affirm as modified Sloan’s judgment of conviction.
I. BACKGROUND
In November 2015, Sloan pled guilty to state-jail-felony theft and was placed
on deferred-adjudication community supervision for four years. See Tex. Penal Code
Ann. § 31.03(e)(4)(A). In May 2019, the State petitioned to adjudicate Sloan based on
his commission of credit-card or debit-card abuse.1 See id. § 32.31(b). Sloan pled “[n]ot
true” to this allegation.
1
The State’s petition to adjudicate alleged three other violations of Sloan’s
community supervision in addition to credit-card or debit-card abuse. However, the
State waived these three grounds before Sloan’s adjudication hearing began, and the
State proceeded only on the allegation of credit-card or debit-card abuse.
2
The State called two witnesses to prove its case at Sloan’s adjudication hearing:
(1) Officer Ryan Timmons, who had arrested Sloan for credit-card or debit-card
abuse; and (2) Sergeant Charles Boykin, who had interviewed Sloan after his arrest.
Officer Timmons testified that he and his partner were dispatched to a local
hotel because the hotel staff indicated that a guest—Sloan—had used a fraudulent
card for his hotel reservation.2 The hotel staff showed Officer Timmons the
fraudulent charges in the computer system, then they accompanied Officer Timmons
to Sloan’s room. When Sloan opened the door, unleashing the smell of marijuana, the
hotel staff identified him as the individual who had reserved the room using a
fraudulent card. Officer Timmons asked Sloan for identification, and Sloan responded
by pointing to his wallet on the bed. The officer entered the room to retrieve the
wallet, then brought it back to Sloan and removed Sloan’s identification. In doing so,
Officer Timmons noticed an American Express card in the wallet, and Sloan
confirmed this was the card that he had used to reserve the room.3 Officer
Timmons’s partner took the card and tested it in the lobby of the hotel to confirm
2
Officer Timmons further testified that when the hotel staff called the police,
they reported that Sloan had used multiple fraudulent cards for prior bookings as well.
However, the State did not offer testimony to prove when and if such prior instances
of fraud had occurred.
3
Before Officer Timmons visited Sloan’s room, the hotel staff told him that
Sloan’s fraudulent card was an American Express.
3
that it was fraudulent. It was; the card had been programmed to pull money from an
account other than that indicated on its face.
Officer Timmons then placed Sloan under arrest and, at Sloan’s request,
arranged for him to talk with a detective. Meanwhile, the officer collected other
incriminating evidence—a laptop, a USB device designed to read the magnetic strips
on credit and debit cards, and multiple blank credit or debit cards—from Sloan’s hotel
room.
On cross-examination, Sloan’s counsel briefly questioned Officer Timmons
regarding his initial entry into Sloan’s hotel room. He asked Officer Timmons
whether Sloan had willingly let him into the room to retrieve his identification or
whether the officer had “push[ed] [his] way in.” Officer Timmons stated that he had
not pushed his way in and clarified that Sloan’s front door “was already open,” but
the officer did not expressly address whether he had Sloan’s consent to enter the
room. Rather, Officer Timmons responded that, based on the smell of marijuana, he
had “entered the room due to contraband possibly being there and to identify
[Sloan].” The officer admitted, however, that “no marijuana was ever found.”
Sloan’s counsel then asked Officer Timmons what he had seen when he
entered the room, but the officer could not recall; he remembered seeing clothes and
a laptop bag on the bed, but he could not remember whether Sloan’s laptop or card
reader were also visible. Despite these gaps in Officer Timmons’s memory, and
4
despite his indication that he was wearing a body camera, the video footage from
Officer Timmons’s body camera was not offered into evidence.
Sergeant Charles Boykin then testified regarding his interview with Sloan, and
the trial court admitted the audio recording of the interview into evidence. In the
interview, Sloan admitted using a fraudulent American Express card to reserve the
hotel room, though he claimed that he had not reprogrammed the card himself and
was not aware of the full extent of the fraud. 4
After both sides rested and closed,5 the trial court found the allegation of
credit-card or debit-card abuse to be true. The trial court heard punishment evidence
and then sentenced Sloan to two years’ confinement.
Sloan filed a motion for new trial, alleging only that “[t]he verdict [sic] is
contrary to the law and the evidence”; he did not allege ineffective assistance of
counsel.6 The motion was overruled by operation of law without a hearing. See Tex.
Code Crim. Proc. Ann. art. 45.038(b).
4
Sloan told Sergeant Boykin that he had met a man on Facebook who had
promised that Sloan could “make some money” if he mailed the man $50 along with
an empty prepaid credit card. The man from Facebook then mailed the card back and
told Sloan to try using it—without specifying how much money was available for
Sloan’s use. Sloan acknowledged he “knew something was going on with the card”
but stated that he “d[id]n’t know too much” about the reprogramming. He explained
that he had engaged in the fraud because he “was just kind of down on money.”
Sloan rested without calling any witnesses.
5
A defendant is not required to raise ineffective assistance of counsel in a
6
motion for new trial to preserve the issue for appeal; in fact, the Court of Criminal
5
II. DISCUSSION
Sloan raises a single point on appeal: he claims that his trial counsel provided
ineffective assistance by failing to move to suppress the evidence7 that was found in
and seized from Sloan’s hotel room, allegedly in violation of the Search-and-Seizure
Clause of the Fourth Amendment. See U.S. Const. amend. IV. However, the record is
insufficiently developed to support Sloan’s ineffective-assistance claim; instead, the
record merely reveals clerical errors in the judgment.
A. Ineffective Assistance
A defendant has a constitutional right to the effective assistance of counsel.
U.S. Const. amend. VI; Ex parte Martinez, 330 S.W.3d 891, 900 (Tex. Crim. App.
2011). To establish ineffective assistance, an appellant must prove by a preponderance
of the evidence that (1) his counsel’s representation was deficient and (2) the
deficiency prejudiced his case. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064 (1984); Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim. App. 2013). Both
Strickland prongs must be affirmatively demonstrated by the record; the failure to
Appeals has recognized that “a post-conviction writ proceeding, rather than a motion
for new trial, is the preferred method for gathering the facts necessary to
substantiate . . . a Sixth Amendment challenge.” Robinson v. State, 16 S.W.3d 808, 809–
11 (Tex. Crim. App. 2000).
7
Although the scope of the challenged evidence is unclear, Sloan appears to
argue that his trial counsel should have moved to suppress everything found in his
hotel room from the moment Officer Timmons entered the room to retrieve Sloan’s
wallet—including the fraudulent American Express card, laptop, card reader, and
blank credit or debit cards.
6
prove either prong defeats the ineffective-assistance claim. Thompson v. State, 9 S.W.3d
808, 813 (Tex. Crim. App. 1999).
To establish deficient performance, an appellant must prove that “counsel’s
representation fell below an objective standard of reasonableness based upon
prevailing norms.” Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998) (per
curiam). Our review of counsel’s representation is highly deferential; we indulge a
strong presumption that counsel “rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.” Ex parte
Bowman, 533 S.W.3d 337, 350 (Tex. Crim. App. 2017) (quoting Strickland, 466 U.S. at
690, 104 S. Ct. at 2066); see Nava, 415 S.W.3d at 307–08. This presumption generally
“cannot be overcome absent evidence in the record of the attorney’s reasons for his
conduct.” Martinez, 330 S.W.3d at 901. Consequently, “[d]irect appeal is usually an
inadequate vehicle for raising [an ineffective-assistance] claim because the record is
generally undeveloped.” Menefield v. State, 363 S.W.3d 591, 592–93 (Tex. Crim. App.
2012) (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)); see
Thompson, 9 S.W.3d at 813–14. If the record is silent as to the attorney’s reasons, the
appellate court must presume that the conduct “‘fell within the wide range of
reasonable professional assistance’ and . . . constituted sound trial strategy” unless the
conduct was “so outrageous that no competent attorney would have engaged in it.”
Prine v. State, 537 S.W.3d 113, 117 (Tex. Crim. App. 2017) (quoting Goodspeed,
7
187 S.W.3d at 392, and Thompson, 9 S.W.3d at 813); Menefield, 363 S.W.3d at
593 (quoting Goodspeed).
In Menefield, for example, the appellant claimed that his trial counsel had
performed deficiently by failing to object to a laboratory report that was admitted
without the necessary testimony from its author.8 363 S.W.3d at 592. The Court of
Criminal Appeals acknowledged that “[p]erhaps there was no good reason” for trial
counsel’s failure to object. Id. at 593. “Or perhaps,” the court speculated,
“[Menefield’s] counsel realized that cross-examining [the author of the report] would
not benefit his client” and chose not to object as a trial strategy. Id.; see also Nava,
415 S.W.3d at 308 (speculating possible reasons why defense counsel may have been
acting reasonably by not identifying an objectionable juror). Ultimately, the court
“d[id] not know why counsel [had] failed to . . . objec[t] because the record [wa]s silent
on the matter”—“[n]either trial counsel nor the State ha[d] been given an opportunity
[to] respond to appellant’s [ineffective-assistance] allegation.” Menefield, 363 S.W.3d at
593. Therefore, because counsel’s actions could have been based on a reasonable trial
strategy, the court presumed that they were, and the silent record could not overcome
this presumption. Id. The undeveloped state of the record was thus fatal to
Menefield’s ineffective-assistance claim. Id.; see also Nava, 415 S.W.3d at 308 (holding
8
The court of appeals agreed with Menefield and held that his trial counsel’s
failure to object to the laboratory report constituted ineffective assistance. Menefield,
363 S.W.3d at 592. The State petitioned the Court of Criminal Appeals for
discretionary review. Id.
8
that the silent record could not support appellant’s ineffective-assistance claim);
Bledsoe v. State, 479 S.W.3d 491, 497 (Tex. App.—Fort Worth 2015, pet. ref’d)
(“Because counsel’s reasons for his conduct do not appear in the record and there is
at least the possibility that the conduct could have been grounded in legitimate trial
strategy, we defer to counsel’s decisions[.]”).
As in Menefield, the record in this case is silent as to why Sloan’s trial counsel
decided not to move to suppress the seized evidence. See 363 S.W.3d at 593. And, as
in Menefield, Sloan’s trial counsel certainly could have had a competent reason for his
actions based on a legitimate trial strategy. See id. Perhaps Sloan’s counsel believed that
Sloan was unlikely to prevail on a motion to suppress. 9 See Mooney v. State, 817 S.W.2d
Perhaps, as the State argues, Sloan lacked standing to challenge the search at all
9
since he reserved the room using a fraudulent credit or debit card.
“[A]n accused has standing to challenge the admission of evidence obtained by
an ‘unlawful’ search or seizure only if he had a legitimate expectation of privacy in the
place invaded.” Ex parte Moore, 395 S.W.3d 152, 158–60 (Tex. Crim. App. 2013).
Generally, a registered guest staying overnight in a hotel room has a legitimate
expectation of privacy recognized as reasonable, and he therefore has standing to
challenge an unlawful search or seizure under the Fourth Amendment. Stoner v.
California, 376 U.S. 483, 489–90, 84 S. Ct. 889, 893 (1964); Moore, 395 S.W.3d at 159.
However, just as “[a] defendant lacks standing to contest the search of a stolen
vehicle,” so too is a defendant’s standing to object to the search of a fraudulently
obtained hotel room questionable. Hughes v. State, 897 S.W.2d 285, 305 (Tex. Crim.
App. 1994); accord Busby v. State, 990 S.W.2d 263, 270 (Tex. Crim. App. 1999); Walbey v.
State, 926 S.W.2d 307, 312 (Tex. Crim. App. 1996); see also Rakas v. Illinois, 439 U.S.
128, 143 n.12, 99 S. Ct. 421, 430 n.12 (1978) (recognizing that although “[a] burglar
plying his trade in a summer cabin during the off season may have a thoroughly
justified subjective expectation of privacy . . . . [h]is presence . . . is wrongful[ and] his
expectation is not one that society is prepared to recognize as reasonable” (internal
quotation marks and citations omitted)).
9
693, 698 (Tex. Crim. App. 1991) (“Counsel is not required to engage in the filing of
futile motions.”). Or perhaps counsel felt that developing the circumstances of the
search would not benefit his client for another reason. We have no way of knowing
why Sloan’s trial counsel did what he did; as in Menefield, counsel was not “given an
opportunity [to] respond to appellant’s allegation.” See 363 S.W.3d at 593. However,
because counsel’s actions could have been based on a sound trial strategy, we must
presume that they were; a silent record cannot overcome the “strong presumption”
that counsel acted reasonably. Prine, 537 S.W.3d at 117; Thompson, 9 S.W.3d at 814; see
Menefield, 363 S.W.3d at 593. Consequently, Sloan has not carried his burden to prove
deficient performance.
Because “[f]ailure to make the required showing of . . . deficient
performance . . . defeats the ineffectiveness claim,” we overrule Sloan’s sole issue. 10
Thompson, 9 S.W.3d at 814 (quoting Strickland, 466 U.S. at 700, 104 S. Ct. at 2071).
From the current, undeveloped state of the record, it is unclear whether Sloan
had standing to object to the search of his hotel room, and we need not decide this
issue to dispose of the appeal. See Tex. R. App. P. 47.1. However, Sloan’s trial
counsel—who we presume was aware of the full details of the search—may have
known facts that resolved the standing issue against his client.
10
Even if Sloan had carried his burden to prove deficient performance, his
ineffective-assistance claim would fail because the record is insufficiently developed to
determine the validity of the search—and therefore insufficiently developed to show
prejudice.
To establish the prejudice prong of an ineffective-assistance claim based on
counsel’s failure to file a motion to suppress, the appellant must show a reasonable
probability that the trial court would have granted the motion or abused its discretion
10
B. Clerical Errors
We raise a second issue sua sponte: while reviewing the record, we noted
clerical errors in the judgment. Specifically, the judgment states that Sloan pled
“[t]rue” to the motion to adjudicate, that he entered an open plea to the court, and
that the trial court found that Sloan had violated the terms of his community
supervision as alleged in paragraph three of the State’s “Original Motion to Adjudicate
Guilt.” The record, however, indicates that Sloan pled “[n]ot true” to the motion to
adjudicate, that Sloan tried his case to the bench rather than entering an open plea,
by denying it. Jackson, 973 S.W.2d at 957; see Strickland, 466 U.S. at 694, 104 S. Ct. at
2068. The appellant thus bears the “burden to develop facts and details of the search
sufficient to [allow the reviewing court to] conclude that the search was invalid.”
Jackson, 973 S.W.2d at 957 (rejecting ineffective-assistance claim because appellant
failed to carry his burden to develop enough of the details of the search to show its
invalidity). If the record is silent or insufficiently developed as to the circumstances of
the search, we must presume “proper police conduct” and, in turn, presume that a
motion to suppress would not have been granted. Id.
Sloan has failed to carry his burden to establish the circumstances of the search
of his hotel room. Although Officer Timmons testified broadly about his interaction
with Sloan and the items that he seized from Sloan’s room, the facts and details of the
search were not fully explored at the adjudication hearing. There are numerous
reasons why the search—as it appears to have occurred based on the current state of
the record—may have been constitutionally valid. See, e.g., supra note 9. Or it may not
have been. However, because the details of the search are insufficiently developed, we
must presume that the police acted appropriately and therefore presume that the
motion to suppress would not have been granted. See Jackson, 973 S.W.2d at 956–57;
see also Deaver v. State, 314 S.W.3d 481, 486–87 (Tex. App.—Fort Worth 2010, no pet.).
(holding appellant could not prove motion to suppress would have been granted
based on a “limited, unclear record” that was “ambiguous” as to the circumstances of
the alleged search). Thus, even if the record affirmatively demonstrated deficient
performance, Sloan’s ineffective-assistance claim would fail.
11
and that the trial court found that Sloan had violated the terms of his community
supervision as alleged in paragraph three of the State’s “First Amended Second
Petition to Proceed to Adjudication.”
We may correct clerical errors in a judgment to make the record “speak the
truth” when, as here, we have the information necessary to do so. Ette v. State,
551 S.W.3d 783, 792 (Tex. App.—Fort Worth 2017), aff’d, 559 S.W.3d 511 (Tex.
Crim. App. 2018); Asberry v. State, 813 S.W.2d 526, 529–30 (Tex. App.—Dallas 1991,
pet. ref’d) (en banc); see also French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App.
1992) (agreeing with Asberry regarding appellate courts’ authority to reform judgments
and adopting Asberry’s reasoning). This authority “depends neither on a party’s request
nor on whether a party objected in the trial court.” Cain v. State, Nos. 02-19-00258-
CR, 02-19-00259-CR, 2021 WL 1034862, at *9 (Tex. App.—Fort Worth Mar. 18,
2021, no pet. h.); Ette, 551 S.W.3d at 792. We therefore modify Sloan’s judgment to
reflect what actually occurred; namely, to document that Sloan pled “[n]ot true” to the
motion to adjudicate, to remove the erroneous reference to an open plea, and to recite
that the trial court found that Sloan violated the terms of his community supervision
as set forth in paragraph three of the State’s “First Amended Second Petition to
Proceed to Adjudication.” See Tex. R. App. P. 43.2(b); Alexander v. State, 496 S.W.2d
86, 87 (Tex. Crim. App. 1973) (correcting judgment to reflect trial by jury and plea of
“not guilty”); see also Arent v. State, No. 02-20-00023-CR, 2020 WL 6326151, at *1–
12
2 (Tex. App.—Fort Worth Oct. 29, 2020, no pet.) (mem. op., not designated for
publication) (correcting judgment to reflect that appellant pled “not true”). 11
III. CONCLUSION
Having overruled Sloan’s sole issue, and having modified the judgment to
reflect the record, we affirm the judgment as modified.
/s/ Mike Wallach
Mike Wallach
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: April 22, 2021
11
Unpublished opinions have no precedential value. Tex. R. App. P. 47.7(a).
Nonetheless, we consider unpublished opinions with similar facts instructive and cite
them in agreement with their application of settled law. See Cain, 2021 WL 1034862, at
*4 n.8.
13