                            NUMBER 13-13-00456-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

MELODY LABRY,                                                               Appellant,

                                           v.

THE STATE OF TEXAS,                                                         Appellee.


                   On appeal from the 347th District Court
                         of Nueces County, Texas.


                         MEMORANDUM OPINION
               Before Justices Rodriguez, Garza, and Perkes
                  Memorandum Opinion by Justice Garza
      Appellant, Melody Labry, pleaded guilty to burglary of a building other than a

habitation, a state-jail felony, and was sentenced to two years in state jail. See TEX.

PENAL CODE ANN. § 30.02(a)(1), (c)(1) (West 2011). The sentence was suspended and

she was placed on community supervision for five years. The State filed a motion to

revoke, alleging that Labry had violated various conditions of her community supervision.
The trial court granted the motion, revoked Labry’s community supervision, imposed the

original state jail sentence, and certified Labry’s right to appeal. See TEX. R. APP. P.

25.2(a)(2). On appeal, Labry argues that (1) she was afforded ineffective assistance of

counsel, and (2) the trial court abused its discretion in sentencing her. We affirm.

                             I. INEFFECTIVE ASSISTANCE OF COUNSEL

        By her first issue, Labry contends that her trial counsel was ineffective, thereby

depriving her of her Sixth Amendment right to counsel, see U.S. CONST. amend. VI,

because he failed to provide the trial court with Labry’s medical records and failed to

argue that Labry’s “numerous severe medical conditions prevent[ed] her from completing

her probation requirements.”1

        To obtain a reversal of a conviction for ineffective assistance of counsel, a

defendant must show that (1) counsel’s performance fell below an objective standard of

reasonableness and (2) counsel’s deficient performance prejudiced the defense, resulting

in an unreliable or fundamentally unfair outcome of the proceeding. Davis v. State, 278

S.W.3d 346, 352 (Tex. Crim. App. 2009) (citing Strickland v. Washington, 466 U.S. 668,

687 (1984)). “Deficient performance means that ‘counsel made errors so serious that

counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment.’” Ex parte Napper, 322 S.W.3d 202, 246 (Tex. Crim. App. 2010) (quoting

Strickland, 466 U.S. at 687).         The prejudice prong requires showing “a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different.” Id. at 248 (citing Strickland, 466 U.S. at 694). “A reasonable



        1 Labry testified at the revocation hearing that “I have a vertebrae in my neck and my back that
needs surgery immediately they said and I have carp[a]l tunnel in both hands and I have a torn meniscus
that I need surgery as well.”

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probability is a probability sufficient to undermine confidence in the outcome.” Id. (citing

Strickland, 466 U.S. at 694).

        Here, assuming but not deciding that the first Strickland prong is satisfied, we

conclude that Labry cannot establish a reasonable probability that, but for counsel’s

actions, the result of the proceeding would have been different. See id. At the revocation

hearing, Labry pleaded true to violating several conditions of her community supervision.

In particular, Labry conceded that she tested positive for cocaine, failed to report to her

probation officer on one occasion, and failed to pay supervision fees. Labry argued at

the hearing that her failure to report should be excused because she was in the hospital.

However, she did not explain at the hearing, nor does she explain on appeal, how her

medical conditions could have conceivably “prevented her” from paying supervision fees

or abstaining from illegal drug use as required by the community supervision order.

Therefore, even if counsel had introduced medical records and argued that Labry’s

medical conditions prevented her from complying with the community supervision

requirements, the trial court still in all likelihood would have revoked her community

supervision and sentenced her to the original state jail term. See Moore v. State, 605

S.W.2d 924, 926 (Tex. Crim. App. 1980) (“[O]ne sufficient ground for revocation will

support the court’s order to revoke probation.”). We overrule Labry’s first issue.

                                      II. IMPOSITION OF SENTENCE

        By her second issue, Labry contends that the trial court abused its discretion “in

sentencing [her] to the maximum sentence when her attorney failed to provide medical

information to the court that should have been considered by the judge.” 2 The sole


        2 To the extent that Labry suggests by this issue that her trial counsel was ineffective for failure to
introduce her medical records, we have already overruled that issue. In any event, we note that challenges

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authority Labry relies upon in support of this issue is a provision of the code of criminal

procedure stating that the trial court, upon revoking a defendant’s community supervision,

may “reduce the term of confinement originally assessed” if “the judge determines that

the best interests of society and the defendant would be served by a shorter term of

confinement . . . .” TEX. CODE CRIM. PROC. ANN. art. 42.12, § 23(a) (West Supp. 2013).

However, Labry does not cite any authority, and we find none, indicating that a trial court

errs when it declines to reduce the sentence pursuant to this statute. Indeed, the statute

clearly provides that any reduction of the sentence in “the best interests of society and

the defendant” is within the discretion of the trial court. See id. No abuse of that discretion

has been shown here. We overrule Labry’s second issue.3

                                              III. CONCLUSION

        The trial court’s judgment is affirmed.



                                                            DORI CONTRERAS GARZA,
                                                            Justice
Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
27th day of February, 2014.




requiring development of a record to substantiate a claim, such as ineffective assistance of counsel, may
be raised in an application for writ of habeas corpus. See TEX. CODE CRIM. PROC. ANN. art. 11.07 (West
Supp. 2011); Cooper v. State, 45 S.W.3d 77, 82 (Tex. Crim. App. 2001).

        3    To the extent that Labry’s issue might be construed as arguing that her sentence was
unconstitutionally excessive, she waived that issue by failing to raise it at trial or in a motion for new trial.
See TEX. R. APP. P. 33.1(a). Even if she had preserved that issue, it would lack merit because the two-year
state jail term is within the limits prescribed by the penal code for a state-jail felony. See TEX. PENAL CODE
ANN. § 12.35(a) (West 2011); Trevino v. State, 174 S.W.3d 925, 928 (Tex. App.—Corpus Christi 2005, pet.
ref’d) (“Punishment which falls within the limits prescribed by a valid statute is not excessive, cruel, or
unusual.”) (citing Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983) (en banc)).

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