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Spangenberg v. State10/18/2000
rt. However, the basis for the suppression was the fact that the videotape included a discussion regarding Arizola's extraneous offenses. The specific portion of the videotape at issue, though, has nothing to do with Arizola's extraneous offenses and was clearly not the subject of Spangenberg's motion to suppress. Furthermore, pre-trial rulings are tentative and subject to revision at trial. See Montalvo v. State, 846 S.W.2d 133, 138 (Tex. App.-Austin 1993, no pet.). Accordingly, the portion of the videotape that was admitted was not rendered inadmissible by the trial court's pre-trial suppression order.
Even if Arizola's statement that he had had less beer than Spangenberg was substantively inadmissible, it was properly admitted for impeachment purposes. The Texas Rules of Evidence expressly allow the credibility of a witness to be attacked by any party, "including the party calling him." Tex. R. Evid. 607, Miranda v. Sate, 813 S.W.2d 724, 735 (Tex. App.-San Antonio 1991, pet. ref'd). However, prior inconsistent statements may not be used under the guise of impeachment for the primary purpose of placing otherwise inadmissible substantive evidence before the jury. See Hughes v. State, 4 S.W.3d 1, 3 (Tex. Crim. App. 1999); Pruitt v. State, 770 S.W.2d 909, 911 (Tex. App.-Fort Worth 1989, pet. ref'd). In determining the admissibility of impeachment evidence, the trial court must consider the State's knowledge that its own witness would testify unfavorably, in addition to balancing the probative value and prejudicial effect of the evidence. See Hughes, 4 S.W.3d at 5.
In this case, there is no evidence that the State knew before it called Arizola to the stand that his testimony would contradict what he said on the video tape. In fact, the State acknowledged that it had provided Arizola with a copy of the tape prior to trial and it anticipated that he would testify truthfully. The State offered Arizola several opportunities to admit to telling Officer Jennings that Spangenberg had had more to drink than he had, but he refused to do so. Under these circumstances, it appears then that the portion of the videotape at issue was used for purposes of challenging Arizola's credibility, and not in an attempt to place inadmissible evidence before the jury. Spangenberg's third issue is overruled.
C. Sufficiency of the Evidence
In his final issue, Spangenberg contends that the evidence is factually insufficient to support the jury's finding of guilt. In reviewing the factual sufficiency of the evidence, we view all of the evidence, both for and against the finding, in a neutral light and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence that it is manifestly wrong and unjust. See Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). A proper factual sufficiency review asks whether the poof of guilt is "so obviously weak as to undermine confidence in the jury's determination" or whether "the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Johnson v. State, 23 S.W.3d 31, 47 (Tex. Crim. App. 2000).
Spangenberg contends that the evidence favoring his conviction is weak in light of the prejudicial nature of that evidence when weighed against his video performance and the testimony of his witness. However, even when Spangenberg's previous DWI convictions and Arizola's negative testimony are ignored, the finding of guilt is supported by sound evidence. First, Trooper Jennings testified that he noticed the smell of alcohol on Spangenberg's breath as he spoke with him. Then, the squad car video showed Spangenberg walking in a rather strange manner to the back of his truck. When Jennings asked
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