                            NUMBER 13-08-00665-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


PHILLIP LUMPKINS A/K/A PHILLIP LUMPKIMS,                                     Appellant,

                                            v.

THE STATE OF TEXAS,                                                           Appellee.


                   On appeal from the 28th District Court of
                          Nueces County, Texas.


                         MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Yañez and Benavides
            Memorandum Opinion by Chief Justice Valdez

       After a bench trial, appellant, Phillip Lumpkins (a/k/a Phillip Lumpkims), was

convicted of the offense of aggravated perjury, a third-degree felony, and sentenced to two

years’ confinement. See TEX . PENAL CODE ANN . § 37.03 (Vernon 2003). In a single issue,

Lumpkins challenges the legal and factual sufficiency of the evidence supporting his

conviction. We affirm.
                                      I. BACKGROUND

       Lumpkins was indicted for the offense of aggravated perjury because he allegedly

gave false testimony before a jury during the guilt/innocence phase of a trial where he was

defending charges of unauthorized use of a motor vehicle and evading arrest. During the

guilt/innocence phase of that trial, Lumpkins answered his counsel’s questions as follows:

       Defense Counsel:     Were you the person that took the [Corpus Christi] egg
                            truck . . . ?

       Lumpkins:            No, I don’t know anything about the truck.

       Defense Counsel:     Okay. And you weren’t driving the truck?

       Lumpkins:            No, I wasn’t driving the truck.

       Defense Counsel:     And you didn’t run it into the—the mound of dirt at the
                            construction site?

       Lumpkins:            No.

A jury convicted Lumpkins of unauthorized use of a motor vehicle and evading arrest, and

at the punishment phase, on cross-examination by the State, Lumpkins was asked:

       State:        So you lied to the jury that you didn’t take that truck?

                     ....

       Lumpkins:     Your Honor—yeah, I took the truck, Your Honor. Yeah, I took
                     the truck. I have to admit it, you know. I apologize to the Court
                     and to my lawyer, but I really didn’t think anybody would
                     believe me anyway. I thought we was just going through the
                     process of defending [myself] because I got a right to defend
                     myself, you know.

Lumpkins was sentenced to two concurrent terms of confinement for one year.

       At Lumpkins’s trial for aggravated perjury, the trial court admitted the reporter’s

record from the previous trial and affidavits from the prosecutor and court reporter in the

previous case. The trial court also heard arguments from counsel. It then found Lumpkins

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guilty and sentenced him to two years’ confinement, to run concurrently with the two terms

of confinement that he was previously sentenced to serve. This appeal ensued.

                                      II. DISCUSSION

       In a single issue, Lumpkins challenges the legal and factual sufficiency of the

evidence supporting his conviction. We will briefly outline the standard of review, construe

the applicable statute, and analyze Lumpkins’s issue.

A.     Standard of Review

       In conducting a legal sufficiency review, we view the relevant evidence in the light

most favorable to the verdict to determine whether a rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt. Hooper v. State, 214

S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson v. Virginia, 443 U.S. 307, 318-19

(1979)); Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004). The trier of fact

is the sole judge of the facts, the credibility of the witnesses, and the weight given to

testimony. See TEX . CODE CRIM . PROC . ANN . art. 38.04 (Vernon 1979); Beckham v. State,

29 S.W.3d 148, 151 (Tex. App.–Houston [14th Dist.] 2000, pet. ref’d). We do not

reevaluate the weight and credibility of the evidence, and we do not substitute our own

judgment for the trier of fact. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000);

Beckham, 29 S.W.3d at 151. Instead, we consider whether the jury reached a rational

decision. Beckham, 29 S.W.3d at 151.

       When conducting a factual sufficiency review, we view all of the evidence in a

neutral light. Ladd v. State, 3 S.W.3d 547, 557 (Tex. Crim. App. 1999). We will set the

verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and

manifestly unjust or (2) the verdict is against the great weight and preponderance of the

evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Under the first


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prong of Johnson, we cannot conclude that a conviction is “clearly wrong” or “manifestly

unjust” simply because, on the quantum of evidence admitted, we would have voted to

acquit had we been on the jury. Watson v. State, 204 S.W.3d 404, 416 (Tex. Crim. App.

2006). Under the second prong of Johnson, we cannot declare that a conflict in the

evidence justifies a new trial simply because we disagree with the jury’s resolution of that

conflict. Id. Before finding that evidence is factually insufficient to support a verdict under

the second prong of Johnson, we must be able to say, with some objective basis in the

record, that the great weight and preponderance of the evidence contradicts the jury’s

verdict. Id. In conducting a factual sufficiency review, we must also discuss the evidence

that, according to the appellant, most undermines the jury’s verdict. See Sims v. State, 99

S.W.3d 600, 603 (Tex. Crim. App. 2003).

B.     Applicable Law

       A person commits the offense of perjury, if, with intent to deceive and with

knowledge of the statement’s meaning, he makes a false statement under oath or swears

to the truth of a false statement previously made and the statement is required or

authorized by law to be made under oath. TEX . PENAL CODE ANN . § 37.02(a)(1) (Vernon

2003). A person commits the offense of aggravated perjury, if he commits perjury and the

false statement is made during or in connection with an official proceeding and is material.

Id. § 37.03. A person may defend a charge of aggravated perjury by claiming that he

retracted the false statement before completion of the testimony at the official proceeding

and before it became manifest that the falsity of the statement would be exposed. Id. §

37.05 (Vernon 2003).

C.     Analysis

       In his sufficiency challenge, Lumpkins contends that he established the defense of


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retraction as a matter of law because the phrase “official proceeding,” as it is used in the

aggravated perjury and retraction sections of the penal code, encompasses both the

guilt/innocence and punishment phases of trial. Specifically, Lumpkins argues that his

punishment-phase retraction of statements made during the guilt/innocence phase of trial

occurred during the same “official proceeding” and that his reading of the statute, as

applied to the facts of this case, mandated an acquittal.

        Lumpkins’s sufficiency challenge turns on whether the guilt/innocence phase of a

criminal trial is a separate “official proceeding” or only a “phase” of a single “official

proceeding.” The code of criminal procedure, case law, and a plain-text reading of the

applicable penal code sections militate against Lumpkins’s view that the guilt/innocence

phase of trial is only a part of one single official proceeding.

        First, the code of criminal procedure provides for a bifurcated jury trial by stating

that:

        In all criminal cases, other than misdemeanor cases of which the justice
        court or municipal court has jurisdiction, which are tried before a jury on a
        plea of not guilty, the judge shall, before argument begins, first submit to the
        jury the issue of guilt or innocence of the defendant of the offense or
        offenses charged, without authorizing the jury to pass upon the punishment
        to be imposed.

See TEX . CODE CRIM . PROCE ANN . art. 37.07, §2(a) (Vernon Supp. 2008).

        Second, the court of criminal appeals has interpreted article 37.07 as providing for

“two separate proceedings.” See Brumfield v. State, 445 S.W.2d 732, 741 (Tex. Crim.

App. 1969) (plurality op. on reh’g). In Brumfield, the court discussed whether the State

could recall, over defense counsel’s objection, a defendant who had voluntarily testified at

the guilt/innocence phase of trial for “further cross-examination” at the punishment phase.

Id. at 734. The court noted that if article 37.07 “can be interpreted as providing two

separate proceedings[,] then it follows that a defendant’s waiver of his privilege against

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self-incrimination by taking the stand at the guilt stage is limited to that particular

proceeding.” Id.1

        Third, although Black’s Law Dictionary does not define “official proceeding,” it

defines “judicial proceeding” as “any court proceeding; any proceeding initiated to procure

an order or decree, whether in law or in equity.” See BLACK’S LAW DICTIONARY 1324 (9th

ed. 2009). Additionally, “criminal proceeding” is defined as “a proceeding instituted to

determine a person’s guilt or innocence or to set a convicted person’s punishment; a

criminal hearing or trial.” Id. In defining “official proceeding” under the “fair import of its

terms” standard, we conclude that it applies separately to the guilt/innocence and

punishment phases of trial in a court of record. See generally, TEX . PENAL CODE ANN . §

1.05(a) (Vernon 2003) (providing that words and phrases in the penal code should be

construed “according to the fair import of [its] terms, to promote justice and effect the

objectives of the [penal] code.”).

        Finally, our construction of the phrase “official proceeding” is buttressed by dicta in

Vaughn v. State, 931 S.W.2d 564, 567 (Tex. Crim. App. 1996) (en banc) (per curiam). In

Vaughn, the defendant, who was indicted for the offense of aggravated assault, testified

at both the guilt/innocence and punishment phases of a jury trial. Id. at 565. The

defendant’s guilt/innocence-phase testimony raised the issues of self-defense and defense

of a third-party. Id. The jury rendered a guilty verdict. Id. At punishment, the State asked

the defendant if she accepted the jury’s verdict and was willing to admit to the members

of the jury that the verison of the facts that they believed, as evidenced by the guilty verdict,

was true. Id. The defendant refused to do so. Id. During its closing argument, the State

urged a harsh sentence because the defendant refused to accept responsibility for the

attack. Id. Defense counsel did not object to either the State’s line of questioning or the
        1
          Brumfield’s holding was later em braced by a m ajority of the court in Beathard v. State, 767 S.W .2d
423, 432 (Tex. Crim . App. 1989).
                                                      6
closing argument. Id. On appeal, the defendant asserted that she had been rendered

ineffective assistance of counsel.     Id.   The court of criminal appeals overruled the

ineffective assistance of counsel issue, and, in dicta, stated:

       A defendant’s right to take the stand at the guilt phase of trial and testify in
       his own behalf does not insulate him from being prosecuted for perjury if he
       lies in some material way while on the stand. We know of nothing in the
       Constitution to prevent such a prosecution. A defendant deciding whether
       to take the stand at the punishment phase of trial is simply confronted with
       more momentous consequences than the vague threat of a perjury
       prosecution. Indeed, if a defendant gives testimony at punishment which is
       inconsistent with testimony given at the guilt phase of the same trial, he has
       provided the State with evidence constituting a prima facie case of
       aggravated perjury against the defendant.

Id. at 565 (citing TEX . PENAL CODE ANN . §§ 37.03, 37.06 (Vernon 2003)).

       Viewing the evidence in the light most favorable to the verdict, we conclude that a

rational trier of fact, in this case the trial court, could have found beyond a reasonable

doubt that Lumpkins committed the offense of aggravated prejury. See Hooper, 214

S.W.3d at 13. Viewing the evidence in a neutral light, we further conclude that the

evidence is not so weak that the trial court’s verdict seems clearly wrong and manifestly

unjust, and that the trial court’s verdict is not against the great weight and preponderance

of the evidence. Watson, 204 S.W.3d at 414-15. We conclude that the evidence is legally

and factually sufficient to support Lumpkins’s conviction and overrule his sole issue.

                                      III. CONCLUSION

       We affirm the trial court’s judgment.

                                                   ________________________
                                                   ROGELIO VALDEZ
                                                   Chief Justice

Do Not Publish. TEX . R. APP. P. 47.2(b)
Memorandum Opinion delivered and filed
this the 1st day of October, 2009.


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