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In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-22-00366-CR

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BOBBY WAYNE NICKELBUR, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 356th District Court

Hardin County, Texas

Trial Cause No. 27033

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MEMORANDUM OPINION

Appellant Bobby Wayne Nickelbur was charged by indictment with the thirddegree felony offense of possession of a controlled substance. Tex. Penal Code Ann. 

§ 481.115. After the trial court denied his motion to suppress, Nickelbur pleaded 

guilty to the offense and the trial court sentenced Nickelbur to five years in the Texas 

Department of Criminal Justice. On appeal, Nickelbur complains that the trial court 

erred by denying his motion to suppress evidence obtained based on a condition of 
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his community supervision that authorized a search in violation of his right against 

an unreasonable search and seizure. We affirm the trial court’s judgment.

Background

Three witnesses testified in the hearing the trial court conducted on 

Nickelbur’s motion to suppress: (1) Gina Balla, Nickelbur’s sister; (2) Shannon 

Knapp, a Hardin County probation officer; and (3) Issac Robichaux, a sergeant with 

the Hardin County Sheriff’s office. 

Knapp testified that Nickelbur is currently on probation for possession of a 

controlled substance and that she supervises Nickelbur on community supervision. 

One of the terms of Nickelbur’s community supervision includes abstaining from 

the use or possession of drugs. Another condition of Nickelbur’s community 

supervision states that Nickelbur must:

[S]ubmit personal property, place of residence, vehicle, personal effects 

to search and seizure at any time, with or without a search warrant or 

of arrest, based on reasonable suspicion by any probation officer or law 

enforcement officer.1

Knapp testified that Nickelbur signed the community supervision order and 

was aware of all of the things he could and could not do while on probation. 

1We note that the only testimony concerning Nickelbur’s conditions for 

community supervision comes from the in-court testimony of Knapp. We cite what 

was testified at trial only. 
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The testimony in the hearing shows that on November 16, 2021, Nickelbur 

was riding in the backseat of a vehicle when Robichaux pulled over the driver of the 

vehicle, Nickelbur’s sister, for failing to use a turn signal. Robichaux testified that 

he saw the vehicle leave from a house in a “high-intensity drug trafficking area” 

which was known by Robichaux to be a location where “prostitution and narcotic 

activity” occurred.

When Robichaux pulled over the driver of the vehicle, he recognized 

Nickelbur in the back seat. Robichaux knew that Nickelbur was on probation and 

asked him to step out of the vehicle. Prior to searching Nickelbur, Robichaux 

contacted Nickelbur’s probation officer. Robichaux told Nickelbur that because he 

was on probation, he would conduct a probationary search of Nickelbur’s person. 

Robichaux conducted a search of Nickelbur’s person and located methamphetamine 

in his front shirt pocket. 

At that point in his investigation, Robichaux believed he had reasonable 

suspicion of drug possession and that he had probable cause to go forward with 

further investigation to see whether there were drugs in the vehicle. No other 

contraband was located on Nickelbur or inside the vehicle. Based on what 

Robichaux knew about both Nickelbur’s prior use and the residence that he was 

leaving, Robichaux believed Nickelbur was in possession of a controlled substance. 
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The State filed charges against Nickelbur for possession of the 

methamphetamine recovered from his person subsequent to this search as well as a 

motion to revoke his community supervision on the drug charge for which he was 

on probation. After hearing the evidence at the motion to suppress hearing, the trial 

judge denied Nickelbur’s motion to suppress.2 This appeal followed. 

Standard of Review and Applicable Law

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

standard of review. State v. Kerwick, 393 S.W.3d 270, 273 (Tex. Crim. App. 2013). 

We give almost total deference to the trial court’s determination of historical facts 

and mixed questions of law and fact that rely on credibility determinations if they 

are supported by the record. Id.; Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. 

App. 1997). However, we review de novo questions of law and mixed questions of 

law and fact that do not rely on credibility determinations. Kerwick, 393 S.W.3d at 

273. At a hearing on a motion to suppress, the trial court is the exclusive trier of fact 

and judge of the credibility of the witnesses. Maxwell v. State, 73 S.W.3d 278, 281 

(Tex. Crim. App. 2002). A trial court may choose to believe or to disbelieve any part 

of a witness’s testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000), 

2The trial court held a combined hearing on Nickelbur’s motion to suppress 

and the State’s motion to revoke Nickelbur’s community supervision. The trial court 

found all the allegations in the motion to revoke community supervision to be true 

and sentenced Nickelbur to two years in state jail. Nickelbur does not challenge the 

trial court’s ruling on the motion to revoke community supervision on appeal. 
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modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App. 

2006). We must uphold the trial court’s ruling on a motion to suppress if the ruling 

was supported by the record and was correct under any theory of law applicable to 

the case. Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003). 

An award of community supervision is a contractual privilege, and the 

conditions are terms of the contract between the trial court and the defendant. Speth 

v. State, 6 S.W.3d 530, 534 (Tex. Crim. App. 1999). When a condition is not 

objected to, it is affirmatively accepted as a term of the contract. Id. A defendant, 

who entersinto the contractual relationship without objection, affirmatively waives 

any rights encroached upon by the terms of the contract. Id. “[A] defendant who is 

fairly notified of the conditions of community supervision at a hearing at which he 

has an opportunity to object forfeits any later complaint about those conditions, as 

long as those conditions do not involve a systemic right or prohibition.” Dansby v. 

State, 448 S.W.3d 441, 447 (Tex. Crim. App. 2014). 

The trial court has broad discretion in determining the conditions of 

community supervision. Butler v. State, 189 S.W.3d 299, 303 (Tex. Crim. App. 

2006). “The judge may impose any reasonable condition that is not duplicative of 

another condition and that is designed to protect or restore the community, protect 

or restore the victim, or punish, rehabilitate, or reform the defendant.” Tex. Code 

Crim. Proc. Ann. art. 42A.301(a). 
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Discussion

In his sole issue, Nickelbur argues that the trial court abused its discretion by 

denying his motion to suppress. Nickelbur contends that his term of community 

supervision authorizing search and seizure as a condition of his community 

supervision violates fundamental constitutional guarantees under both the United 

States Constitution and Texas Constitution. Nickelbur complains that the provision 

is not reasonably restricted to promote the purposes of community supervision 

because the provision’s authorization of unrestricted search and seizure is 

unreasonable. 

Nickelbur asserts that the community supervision provision in his case is 

“identical” to the probationary search provision in Tamez v. State, 534 S.W.2d 686, 

690 (Tex. Crim. App. 1976). We disagree. In Tamez, the probationary condition 

which had been imposed upon the probationer stated: “Submit his person, place of 

residence and vehicle to search and seizure at any time of the day or night, with or 

without a search warrant, whenever requested to do so by the Probation Officer or 

any law enforcement officer.” Id. at 690. In Tamez, the court held that the 

probationary condition in that case was “too broad, too sweeping, and infringes upon 

the probationer’s rights under the Fourth and Fourteenth Amendments to the United 

States Constitution and Article 1, Sec. 9, of the Texas Constitution []” because the 

probationary condition in that case allowed a search of Tamez’s person, residence, 
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and vehicle, at any time by any law enforcement officer, for any purpose, and 

without any individualized suspicion or probable cause. Id. at 692.

Unlike Tamez, the condition here subjects Nickelbur to a warrantless search 

“based upon reasonable suspicion by any probation officer or law enforcement 

officer.” Nickelbur had been placed on community supervision for possession of a 

controlled substance, and another condition of Nickelbur’s community supervision 

required him to refrain from possessing drugs. Because Nickelbur’s condition is 

reasonably restricted to promote the purposes of community supervision, we hold 

that it does not violate the Fourth Amendment or the Texas Constitution. See 

Cochran v. State, 563 S.W.3d 374, 379 (Tex. Crim. App. 2018). 

Likewise, Knapp testified that Nickelbur knew and understood the conditions 

of his community supervision. Therefore, the trial court could have reasonably 

concluded that because Nickelbur was bound by the terms and conditions of his 

probation, which Nickelbur knew and understood, Nickelbur knew he was waiving 

his constitutional right against unreasonable search and seizure. See Samson v. 

California, 547 U.S. 846, 857 (2006); Cochran, 563 S.W.3d at 382.

Moreover, the trial court heard evidence that Sergeant Robichaux had 

reasonable suspicion for the search. There was evidence that Nickelbur was in a 

vehicle leaving a house known to be associated with prostitution and narcotics in an 

area known for “high-intensity drug trafficking” and the vehicle failed to signal a 
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turn and was stopped for this violation. Robichaux testified he recognized Nickelbur 

from prior interactions and knew him to be a narcotics user. Additionally, Robichaux

stated that he knew that Nickelbur was on probation and he contacted Nickelbur’s

probation officer to confirm. Based on his knowledge and observations, Robichaux 

said he believed he had reasonable suspicion to search Nickelbur’s person for 

narcotics and did in fact recover methamphetamine from Nickelbur’s clothing. 

Robichaux also testified that he believed he had probable cause to continue his 

investigation to see if there were drugs in the vehicle. The trial court did not abuse 

its discretion in determining that Robichaux had reasonable suspicion to question 

and search Nickelbur’s person under these facts.

Because the valid condition of Nickelbur’s community supervision authorized 

the warrantless search of his person, we conclude that the trial court did not err in 

denying Nickelbur’s motion to suppress. See Kerwick, 393 S.W.3d at 273. We 

overrule his sole issue. 

Conclusion

The judgment of the trial court is

AFFIRMED.

KENT CHAMBERS

Justice

Submitted on June 25, 2024

Opinion Delivered September 18, 2024

Do Not Publish

Johnson, Wright and Chambers, JJ.