             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-17-00380-CR
     ___________________________

       MARTIN LOPEZ, Appellant

                    V.

         THE STATE OF TEXAS


  On Appeal from the 396th District Court
         Tarrant County, Texas
       Trial Court No. 1466345D


  Before Gabriel, Kerr, and Womack, JJ.
 Memorandum Opinion by Justice Womack
                           MEMORANDUM OPINION

      Appellant Martin Lopez appeals his conviction and fifteen-year sentence for

possession with intent to deliver more than 400 grams of methamphetamine. See Tex.

Health & Safety Code Ann. § 481.112(f). In three issues, he urges us to rely on

inapposite and nonbinding caselaw to unilaterally conclude that a warrantless arrest

for an offense punishable only by a fine violates both the state and federal

constitutions. We will affirm.

      On June 28, 2016, Officer Joshua Stelter stopped Lopez’s vehicle for not

stopping at a stop sign and for failing to signal a turn. After ordering Lopez to exit

the vehicle (because Lopez appeared nervous, because Office Stelter was suspicious of

Lopez’s story about traveling from Arizona to Dallas for a concert, and because

Officer Stelter wanted to separate Lopez from a female passenger in the vehicle),

Officer Stelter placed Lopez under arrest for the misdemeanor offenses of failing to

stop at a stop sign and failing to signal a turn. A police officer with a drug dog then

arrived on the scene—thirteen minutes after Officer Stelter initially stopped Lopez’s

vehicle—and the dog alerted to the possible presence of drugs in the vehicle. Police

searched the vehicle and found methamphetamine.            The trial court later denied

Lopez’s motion to suppress the illegal drugs, concluding in part that “[a]s a result of

the lawful arrest, any further extension of the traffic stop was justified to complete the

investigation.”



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      For some time, it has been settled that neither the Fourth Amendment nor

article I, section 9 of the Texas constitution prohibits police from making a

warrantless arrest for a minor offense that is punishable by fine only. See Atwater v.

City of Lago Vista, 532 U.S. 318, 354, 121 S. Ct. 1536, 1557 (2001); State v. Gray,

158 S.W.3d 465, 469‒70 (Tex. Crim. App. 2005). In his three issues, Lopez invites us

to reconsider the matter in light of several legal developments, including (1) the

United States Supreme Court’s holding in Rodriguez v. United States, 135 S. Ct. 1609

(2015), that in the absence of reasonable suspicion, police may not extend an

otherwise-completed traffic stop in order to conduct a dog sniff; (2) Justice

O’Connor’s dissent in Atwater, reasoning that a warrantless arrest for a misdemeanor

offense is unreasonable under the Fourth Amendment; (3) the Supreme Court’s

decision in Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710 (2009), clarifying the

parameters of a vehicle search incident to arrest; and (4) the fact that five states have

construed their respective constitutions to prohibit a warrantless arrest for a fine-only

offense.   These developments, Lopez contends, “suggest a movement toward

protecting individual rights against police intrusion consistent with the actual wording

of the respective constitutional provisions against unreasonable searches and

seizures.” We are not convinced.1


      1
        We apply a bifurcated standard of review to a trial court’s ruling on a motion
to suppress evidence. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007);
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We defer almost totally to
a trial court’s rulings on questions of historical fact and application-of-law-to-fact

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       Rodriguez is unpersuasive because unlike the dog sniff there, which occurred

after the investigatory detention had concluded, the dog sniff here occurred after Lopez

was arrested, thereby implicating an entirely different area of Fourth Amendment

jurisprudence and rendering Rodriguez inapposite. 135 S. Ct. at 1613‒14.

       Justice O’Connor’s dissenting opinion in Atwater is also not persuasive because,

as article I, section 9 affords no greater protection than the Fourth Amendment,

Crittenden v. State, 899 S.W.2d 668, 673 n.8 (Tex. Crim. App. 1995), we have no reason

to stray from the Atwater majority’s construction that the Fourth Amendment does

not prohibit police from effecting a warrantless arrest for a fine-only offense—an

issue that Gant does not speak to either directly or indirectly.

       And while five other states may now prohibit a warrantless arrest for a fine-

only offense, our legislature has spoken on the matter and has made it abundantly

clear that Texas does not share the same opinion. See Tex. Transp. Code Ann.

§ 543.001 (“Any peace officer may arrest without a warrant a person found

committing a [traffic violation].”). Moreover, as an intermediate appellate court, we

are bound to follow the precedent issued by the court of criminal appeals on this

topic. See Gray, 158 S.W.3d at 469‒70 (referencing Transportation Code Section




questions that turn on evaluating credibility and demeanor, but we review de novo
application-of-law-to-fact questions that do not turn on credibility and demeanor.
Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App.
2005); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).

                                             4
543.001 and stating that “[s]uch an arrest for a minor traffic offense is not an

unreasonable seizure under the Fourth Amendment”).

      The trial court did not err by denying Lopez’s motion to suppress.    We

overrule Lopez’s three issues and affirm the trial court’s judgment.


                                                      /s/ Dana Womack

                                                      Dana Womack
                                                      Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: March 14, 2019




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