Affirmed and Memorandum Opinion filed July 7, 2015.

In The

Fourteenth Court of Appeals

NO. 14-14-000702-CR

NO. 14-14-000703-CR

PATRICK DALE EARVIN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 177th District Court

Harris County, Texas

Trial Court Cause Nos. 1357121 and 1357122

MEMORANDUM OPINION

Appellant Patrick Earvin pleaded guilty to offenses of indecency with a child 

by contact and sexual assault of a child under age 17. See Tex. Penal Code Ann. §§ 

21.11, 22.011 (West 2011). Pursuant to a plea agreement, the trial court assessed 

punishment for each offense at sixteen years’ imprisonment. The sentences were to 

run concurrently. Earvin appeals his conviction in two issues. In his first issue, he 

contends that his plea was involuntary due to ineffective assistance of counsel. In 
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his second issue, he contends that the arresting officer did not have reasonable 

suspicion to stop him for a “left lane for passing only” violation. Because we lack 

authority to consider his ineffectiveness claim and the traffic stop was justified by 

reasonable suspicion, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On August 8, 2012, Department of Public Safety Trooper Eric Pak was 

working stationary patrol in his beat on the eastbound lanes of Interstate 10

between mile markers 818 and 819. While watching eastbound traffic in his 

rearview mirror, Pak witnessed Earvin move from the center lane to the left lane. A 

white truck was slightly ahead of Earvin in the center lane; however, Earvin 

continued driving in the left lane at a constant speed without passing the truck.

After observing Earvin for twenty to thirty seconds, Pak initiated a traffic stop for a 

“left lane for passing only” violation.

Once Earvin pulled over to the eastbound shoulder of I-10, Pak approached 

the passenger side of the vehicle. At that time, Pak saw a young female passenger, 

C.F., sitting in the front seat sucking her thumb and avoiding eye contact. Pak 

asked Earvin to exit the vehicle and informed him that he would be issued a 

warning. When Earvin appeared visually nervous, Pak questioned him about C.F. 

and their destination. Earvin told Pak he was taking C.F. to her mother in 

Beaumont.

Trooper Pak ran Earvin’s license and discovered that Earvin was a registered 

sex offender residing in Crosby, Texas. He then asked Earvin about his association

with C.F. Earvin replied that he was dating C.F.’s mother. Pak asked C.F. to join 

him in the patrol car, where they unsuccessfully tried to contact her mother. During 

their conversation, Pak learned that C.F.’s version of events differed from Earvin’s 

version.
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Concerned about Earvin’s and C.F.’s conflicting stories, Pak contacted

Brandon Bess, a local agent of the Texas Department of Public Safety’s Criminal 

Investigations Division. Bess advised Pak to proceed with an investigation. 

Pursuant to Bess’s suggestion, Pak asked Earvin to follow him to the station.

Earvin complied with that request. Another officer who had arrived during Pak’s 

investigation followed Earvin. C.F. rode to the station in Pak’s patrol car. When

the three-car caravan arrived at the station, C.F. was released to Bess for further 

questioning. Bess then interviewed C.F. She stated that Earvin had taken her to a 

motel in Channelview where he took sexually explicit photographs of her, used 

food and new clothes to barter for oral sex, and applied lotion to her legs while 

rubbing her vagina. C.F. had denied Earvin’s request for vaginal sex. C.F. also 

informed Agent Bess that similar trips to the Baytown-Channelview area had 

occurred on two prior occasions. C.F. showed Bess the explicit photographs, which 

were stored on her mobile phone. Earvin had sent the photographs to C.F. by text 

message. Bess was able to identify Earvin in one of these photographs.

On August 9, 2012, the State indicted Earvin on three felony offenses: 

sexual assault of a child, indecency with a child by touching, and promotion of 

child pornography. The indictments alleged two prior convictions: one for 

possession of a controlled substance and another for indecency with child by 

contact.

Earvin filed a pretrial motion to suppress. On December 9, 2013, the trial

court held a hearing on Earvin’s motion to suppress. At the hearing, the parties 

presented evidence and argument on whether the traffic stop was justified, whether 

the investigation exceeded the scope of the stop, and whether Earvin was under 

arrest at the point he was asked to follow Pak to the station. The court determined 

that the traffic stop was justified by reasonable suspicion. The court found, 
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however, that the seizure rose to the level of an arrest when Pak asked Earvin to 

follow him to the station. The court then suppressed all evidence gathered after 

Pak’s request, but denied the motion with respect to evidence obtained prior to 

Pak’s request. 

On August 27, 2014, pursuant to a plea agreement, Earvin pleaded guilty to 

indecency with a child by contact and sexual assault of a child under age 17. In 

return, the State dismissed its promotion of child pornography charge and 

abandoned the second enhancement paragraph in the two remaining indictments.

The court assessed punishment on each charge at sixteen years’ imprisonment,

with the sentences to run concurrently, in accordance with the plea agreement. 

Earvin retained the right to appeal the trial court’s ruling on his motion to suppress. 

Earvin did not file a motion for new trial. On the day of his plea, Earvin filed a 

signed notice of appeal explicitly pertaining to his motion to suppress.

II. DISCUSSION

A. Ineffective Assistance of Counsel

In his first issue, Earvin claims his plea was involuntary due to ineffective 

assistance of counsel. We do not have authority to consider this issue. 

In a plea-bargain case, a defendant can only appeal matters that were raised 

by written motion filed and ruled on before trial or after receiving the trial court’s 

permission to appeal. Tex. R. App. P. 25.2(a)(2). In the absence of the trial court’s 

permission, the voluntariness of a plea cannot be raised on appeal from a pleabargained felony conviction. Cooper v. State, 45 S.W.3d 77, 81 (Tex. Crim. App. 

2001). 

Earvin did not have permission to appeal the voluntariness of his plea. 

Pursuant to a plea agreement, Earvin pleaded guilty to two felony offenses, and the 
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punishment assessed for each offense was not greater than that recommended by 

the prosecutor. Earvin executed written instruments waiving his right to trial by 

jury and acknowledging a plea bargain in which the State would recommend a 

sentence of sixteen years’ confinement in the Institutional Division of the Texas 

Department of Criminal Justice. Earvin acknowledged that “if the punishment 

assessed by the Court does not exceed the punishment recommended by the 

prosecutor and agreed to by you and your attorney, the Court must give its 

permission to you before you may prosecute an appeal on any matter in this case 

except for those matters raised by you by written motion filed prior to trial[.]” At 

the plea hearing, the trial court stated that Earvin had permission to appeal the 

ruling on his pretrial motion to suppress. Appellant’s notice of appeal explicitly 

states that it is limited to the matters raised in his motion to suppress. Nothing in 

the record indicates that the trial court otherwise granted appellant the right to 

appeal any issues that were not raised by written motion prior to his guilty pleas. 

On these facts, we cannot consider appellant’s complaint that his guilty pleas 

were involuntary. See Tex. R. App. P. 25.2(a)(2); Cooper, 45 S.W.3d at 81; 

Carlton v. State, 91 S.W.3d 363, 364–65 & n.1 (Tex. App.—Texarkana 2002, no 

pet.). Therefore, we overrule Earvin’s first issue. We turn now to Earvin’s second 

issue.

B. Motion to Suppress

In his second issue, Earvin claims that the trial court erred in denying his 

motion to suppress because Pak did not have reasonable suspicion to stop him for a 

“left lane for passing only” violation. We disagree. 
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1. Standard of Review

We review a trial court’s ruling on a motion to suppress under a bifurcated 

standard of review. Abney v. State, 394 S.W.3d 542, 547 (Tex. Crim. App. 2013).

First, we afford almost total deference to the trial court’s findings of historical facts 

as well as mixed questions of law and fact that turn on an evaluation of credibility 

and demeanor. Id. “[A] question ‘turns’ on an evaluation of credibility and 

demeanor ‘when the testimony of one or more witnesses, if believed, is always

enough to add up to what is needed to decide the substantive issue.’” Id. The trial 

judge is the sole judge of witness credibility and the weight given to witness 

testimony. Ex parte Moore, 395 S.W.3d 152, 158 (Tex. Crim. App. 2013). If the 

trial court makes express findings of fact, we view the evidence in the light most 

favorable to the ruling and determine whether the evidence supports the factual 

findings. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). When, 

as here, the trial court does not make explicit findings of fact, we assume the trial 

court made implicit findings of fact supported by the record, Ford v. State, 158 

S.W.3d 488, 493 (Tex. Crim. App. 2005), and we view the evidence in the light 

most favorable to the trial court’s ruling. Moore, 395 S.W.3d at 158.

Second, we review de novo the trial court’s application of the law to the 

facts as well as mixed questions of law and fact that do not turn on an evaluation of 

credibility and demeanor. Abney, 394 S.W.3d at 547; Valtierra, 310 S.W.3d at 447. 

We will sustain the trial court’s ruling if it is reasonably supported by the record 

and is correct on any theory of law applicable to the case. Id. at 447–48.1

 1 Although Earvin asks us to follow this court’s holding in Jaganathan, that case is 

distinguishable. There, this court applied a de novo review based on indisputable video evidence. 

Jaganathan v. State, 438 S.W.3d 823, 826 (Tex. App.—Houston [14th Dist.] 2014, pet. granted).

Here, in contrast, the officer did not activate the dash-cam video until he initiated the stop. After 

less than five seconds have elapsed in the video, Earvin has pulled over to the shoulder and 

stopped his vehicle. The video in this case does not capture any of the events leading up to the 
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2. Burden

A defendant that moves to suppress evidence attributable to an alleged 

Fourth-Amendment violation bears the initial burden of rebutting the presumption 

of proper police conduct. Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 

2009). If the defendant shows that the seizure occurred without a warrant, then it is 

the State’s burden to prove that the seizure was reasonable. Ford, 158 S.W.3d at

492. In this case, the traffic stop was a warrantless seizure. Therefore, the State 

must prove that Pak had reasonable suspicion that Earvin had committed, was in 

the process of committing, or was about to commit a traffic violation.

3. Reasonable Suspicion

A warrantless temporary detention is lawful when an officer has reasonable 

suspicion that an individual is violating the law. Id. Reasonable suspicion “exists if 

the officer has specific articulable facts that, when combined with rational 

inferences from those facts, would lead him to reasonably suspect that a particular 

person has engaged or is (or soon will be) engaging in criminal activity.” Abney, 

394 S.W.3d at 548. This objective standard asks only if an objective basis for the 

temporary detention exists; the officer’s subjective intent is irrelevant. Garcia v. 

State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). We make determinations on 

reasonable suspicion by considering the totality of the circumstances at the time of 

the detention. Abney, 394 S.W.3d at 548. We must determine whether the facts 

available to the officer at the moment of the seizure would warrant a man of 

reasonable caution in the belief that the action taken was appropriate. See Terry v. 

Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889 (1968). The stop 

must be supported by specific and articulable facts at its very inception. State v. 

 

stop, as it did in Jaganathan. Therefore, we must apply the more deferential abuse-of-discretion 

standard set forth above rather than the de novo standard applied in Jaganathan.
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Duran, 396 S.W.3d 563, 568–69 (Tex. Crim. App. 2013). The reasonablesuspicion standard requires courts to make determinations on probabilities, not 

certainties. Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997); see United 

States v. Castillo, 28 F. Supp. 3d 673, 676 (S.D. Tex. 2014).

4. Application

An officer may initiate a traffic stop if he has a reasonable basis for 

suspecting that a motorist has committed a traffic violation. Vasquez v. State, 324 

S.W.3d 912, 919 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d). The State is 

not required to show that a traffic offense was actually committed; it need only 

show that the officer reasonably believed that a violation was in progress. Id. To 

justify the seizure in this case, the State was required to show that the officer had 

reasonable suspicion that (1) the motorist committed the traffic violation of driving 

in the left lane without passing (2) when a sign prohibited such action. See Abney,

394 S.W.3d at 548; see also Tex. Transp. Code Ann §§ 541.304(1), 542.301, 

544.004 (West 2011).

The record supports a finding that Pak reasonably believed Earvin 

committed a “left lane for passing only” violation. According to Pak’s testimony, 

he observed Earvin driving in the left lane for twenty to thirty seconds. During that 

time, Earvin did not appear to be passing or preparing to pass any other vehicles. 

This observation supports the trial court’s determination that Pak had reasonable 

suspicion Earvin committed or was in the process of committing a “left lane for 

passing only” violation.

The record also supports a finding that Pak reasonably believed the “left lane 

for passing only sign” was applicable to Earvin. Failure to comply with a traffic 

control device constitutes an offense only if the defendant had notice of the device 

and disobeyed it. See Abney, 394 S.W.3d at 548; United States v. Garcia, 976 F.
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Supp. 2d 856, 863–64 (N.D. Tex. 2013). An officer is not required to visually 

observe a defendant passing a traffic control device. See Castillo, 28 F. Supp. 3d at 

676. Although a mere hunch does not create reasonable suspicion for an 

investigative stop, the level of suspicion the standard requires is “considerably less 

than proof of wrongdoing by a preponderance of the evidence,” and “obviously 

less” than is necessary for probable cause. Navarette v. California, — U.S. —, 134 

S. Ct. 1683, 1687, 188 L. Ed. 2d 680 (2014).

In Abney, the facts did not support a finding of reasonable suspicion. 394 

S.W.3d at 550. The traffic sign at issue was at least fifteen miles (and as many as 

twenty-seven miles) from the location of the stop. Id. at 545. This distance was too 

great on its own to support a reasonable-suspicion finding. Id. at 550. Additionally, 

the defendant was in the process of making a legal left hand turn when he was 

stopped. Id. at 545. Had he complied with the “left lane for passing only” sign, he

would have committed other traffic violations, such as turning left into a crossover 

from the right hand lane. Id. at 549. The court determined that the stop was not 

justified by reasonable suspicion. Id. at 550.

In Mouton v. State, the facts did support a finding of reasonable suspicion.

101 S.W.3d 686, 690 (Tex. App.—Texarkana 2003, no pet.) (dictum). The stop

occurred between mile markers 823 and 824 of the eastbound lanes of I-10 in 

Chambers County. Id. at 688, 690. The officer followed the defendant for a mile 

before stopping him. Though the officer did not witness the defendant passing any 

“left lane for passing only” signs, he testified that signs were posted a few miles 

from the traffic stop. The evidence indicated that the signs were located at mile 

markers 812, 820, and 827. Id. at 690. The court of appeals determined that these 

facts supported a finding of reasonable suspicion; the officer knew specific, 

articulable facts, such as the location of the signs, supporting the trial court’s 
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finding that the defendant had indeed passed the signs. Id.

Similarly, in Castillo, the facts indicated that the officer had the requisite 

level of suspicion to stop the defendant. 28 F. Supp. 3d at 677. The officer first 

observed the defendant driving in the left hand lane roughly five miles past a “left 

lane for passing only” sign. Id. at 673. The officer did not see the defendant pass 

the sign. A dash-cam video, which was taken by the officer at a later date and 

subsequently reviewed by the court, suggested that the area in which the stop 

occurred was rural and not heavily traveled. Id. at 676. The court noted that the 

highway at issue linked two major cities with only one sizeable city in between. Id.

at 675. The court observed that the particular stretch of highway did not pass 

through heavily populated areas. Id. at 675–76. Only two entrance ramps, several 

county roads, and few turnarounds interrupt the highway in the critical five-mile 

stretch. Id. at 676. Engaging in a probability analysis, the district court determined 

that the facts “easily surmount the threshold required for reasonable suspicion.” Id.

at 677. 

Although Earvin relies on Abney, this case is more similar to Castillo and 

Mouton. Pak observed Earvin while on stationary patrol in his “beat,” an area 

where he “ride[s] all the time.” Pak’s testimony concerning the roadway near the 

stop reflects his knowledge of the sign at mile marker 812 and the subsequent signs 

posted “every few miles” after the one at mile marker 812. Like the officer in 

Mouton, Pak’s knowledge of the signs and the highway support his determination

that the sign at mile marker 812 was applicable to Earvin. Additionally, Pak

initiated the traffic stop approximately six miles past the traffic sign at mile marker 

812. This short distance between the traffic sign and the stop is analogous to 

Castillo’s five miles and Mouton’s four miles and distinguishable from the fifteenplus miles rejected by the Court of Criminal Appeals in Abney. Considering these
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distances and the distance in the present case, along with Pak’s understanding of 

the area comprising his beat, the record supports a finding that Pak reasonably 

believed the “left lane for passing only” sign was applicable to Earvin.

In sum, the evidence in this record supports the implied finding that Pak had 

reasonable suspicion to stop Earvin for driving in the left lane without passing. 

Accordingly, we overrule Earvin’s second issue.

III. CONCLUSION

We do not have authority to consider whether Earvin’s plea was involuntary 

due to ineffective assistance of trial counsel. The record supports the trial court’s 

determination that Pak had reasonable suspicion to stop Earvin for a “left lane for 

passing only” violation. We affirm the trial court’s judgment.

/s/ Marc W. Brown

Justice

Panel consists of Justices Christopher, Brown, and Wise.

Do Not Publish — TEX. R. APP. P. 47.2(b).