Affirmed and Memorandum Opinion filed July 7 , 2015

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 14

- 00 0 702

- 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 No s . 1357121 and 1357122

MEMORANDUM OPINION

Appellant Patrick Earvin ple ade d 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. In2 his second issue, he contends that the arresting officer did not have reasonable suspicion to stop him f or a “ l eft l ane for p assing o nly” violation. Because we lack authority to consider his ineffectiveness claim and the traffic stop was justified by reasonable suspicion, we affirm.

I. F ACTUAL AND P ROCEDURAL B ACKGROUND 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 o nly” violation

. Once Earvin pulled over to the eastbound should er 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 sucki ng her thumb and avoiding eye contact. Pak
asked Earvin to exit the vehicle and informed him that he would be issued a warning . W hen Earvin appeared visually nervous, Pak questioned him about C.F.
and their destination

. Earvin told Pak he was taking C.F. t o 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 associat ion
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 di ffered from Earvin ’s
version

.3 Concerned about Earvin’s and C.F.’s conflicting stories, Pak co ntacted
Brandon Bess , a local agent of the Texas Department of Public Safety’s Criminal Investigations Division. Bess advised Pak to proceed with an inve stigation

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

. Earvin complie d 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 E arvin’s re quest 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 pho tographs t o 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 o f child por nography. The indictments alleged two prior conviction s : one for possession of a controlled substance and another for indecency with ch ild by

contact. Earvin filed a pretrial motion to suppress

. On December 9, 2013, t he trial
court held a hearing on Earvi n’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 ,4 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 a ll 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 ple ade d guilty to indecency with a child by contact and sexual assa ult 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 punish ment on each charge at sixteen years ’ imprisonm ent , with the sentences to run concurrent ly , in accordance with the plea agreement

. Earvin retained the right to appeal the trial court’s ruling on his motion to supp ress. Earvin did not file a motion for new tr ial. On the day of his plea, Earvin filed a

s igned notice of appea l explicitly pertaining to his motion to suppress.

II. D ISCUSSION

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 o f the trial court’s permission, t he voluntariness of a plea cannot be raised on appeal from a plea

bargained 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.
P ursuant to a plea agreement, Earvin ple ade d guilty to two felony offenses, and the5 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

sen tence of sixteen years ’ confinement in the Institutional Division of the Texas Department of Criminal Justice. Earvin acknowledged that “if the punishment

asse ssed by the Court does not exceed the punishment recommended by the prosecutor and agree d 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 b y 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 matter s 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 appell ant’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 o nly” violation. We disagree.6 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 f indings 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 he re, 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 t o 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.3 d 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 initi ated 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 the7 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 wa rrant, then it is
the S tate’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

. T herefore , the State must prove that Pak had reasonable suspicion that Earvin had committed, w as in the process of committing, or was about to commit a traffic violation.

3. Reasonable Suspicion

A w arrantless temporary detention is lawful when an officer has reasonable suspicion that an individual is violating the law. Id. Reasonable suspicion “ exist s 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 d eterminations on reasonable susp icion 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). T he 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

.8 Duran , 396 S.W.3d 563, 568

– 69 (Tex. Crim. App. 2013). The reasonable

suspicion standard requires courts to make determinations on probabilities, not
certainties. Woods v. State , 956 S.W.2d 33, 38 (Tex. Crim. App. 1997) ; see U nited
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 S tate 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 , t he S tate 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 A nn §§ 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 th irty second s. 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 suspicio n Earvin committed or was in the process of committing a “left lane for passing o nly” violation

. The record also support s 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 54 8; U nited States v. Garcia , 976 F.9 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 Cast illo , 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 require s 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. T he traffic sign at issue wa s 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,

t he 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 o nly” sign , he
would have commit ted other traffic violations, such as turning left into a crossover from the right hand lan e. 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 pa ssing o nly” 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’s10 finding that the defendant had indeed passed the signs

. Id.

Si milarly, in Castillo , the facts indicated that the officer had the requisite level of suspicion to stop the defendant. 28 F. Supp. 3d at 67 7 . The officer first
observed the defendant driving in the left hand lane roughly five miles past a “ l eft
l ane for pa ssing o nly” 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 thresh old required for reasonable suspicion.” Id.
at 6 77

. Although Earvin relies on Abney , this case is more similar to C astillo and
Mouton

. Pak observed Earvin while on stationary patrol in his “beat,” an area
where he “r ide[s] all the time.” Pak’s testimony c oncerning 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

. L ike 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 analogo us to Castillo’s five miles and Mouton’s four miles and distinguishable from t he fif teen

plus miles rejected by the Court of Criminal Appeals in Abney

. Considering these11 distance s 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 o nly” sign was applicable to Earvin.
In sum, t he evidence in th is record supports the implied finding that Pak had

re asonable suspicion to stop Earvin for driving in the left lane without passing

. Accordingly, w e overrule Earvin’s second issue.

III. C ONCLUSION
We do not have authority to consider whether Earvin’s plea was involuntary
due to ineffective assistance of tria l counsel. The record supports the trial court’s
determination that Pak had reasonable s uspicion to stop Earvin for a “left lane for

p assing only” violation. W e affirm the trial court’s judgment.

/s/ Marc W. Brown Justice

Panel consists of Justices Christopher , Brown , and Wise

. Do Not Publish

— T EX

. R. A PP

. P. 47.2( b).