Bobby Wayne Nickelbur v. the State of Texas

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 third-

degree 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 enters into 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.
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