concurring.
I concur in the reversal, but do not join in the majority’s additional conclusion that the trial court had no authority to grant appellee’s motion to dismiss. The majority cites Tex.Code Crim.Proc.Ann. art. 32.02 (Vernon 1966) as authority for their holding. This article only provides authority for the state to dismiss a criminal action, it does not diminish the court’s authority to dismiss or set aside an information when a motion is filed by the defendant under Tex. Code Crim.Proc.Ann. art. 27.02 (Vernon Supp.1989). Perhaps the state is taking issue with the title of the defendant’s pleading. Whether entitled a motion to dismiss or set aside, it may still be acted upon by the court. Furthermore, Tex. Code Crim.Proc.Ann. art. 44.01 (Vernon Supp. 1989) gives the state the right to appeal an order of the court if the order dismisses an information, so the genesis of the order is really beside the point.
I also do not join the majority in the dictum regarding the Forte v. State, 759 S.W.2d 128 (Tex.Crim.App.1988) analysis and analogy. While the majority may find a fact interesting and revealing, if that matter is not relevant to the points of error, then it is, in my opinion, dictum. The seminal issue in this case is whether the trial court could dismiss the D.W.I. prosecution based upon the state’s failure to videotape the defendant. The majority resolved that issue correctly and firmly by following three courts of appeals and the express language of the statute. Nothing more was required. Since the majority goes further, I concur in the result only.