dissenting.
Because I am dissatisfied with the majority’s disposition of appellant’s second and third grounds of error, I respectfully dissent.
Appellant’s argument under these grounds is that Fort Bend County was required by Tex.Bev.Civ.Stat.Ann. art. 6701Í -1, sec. 24 (Vernon Supp.1986) to have videotape equipment installed by January 1, 1984, for the specific and primary purpose of visually recording a person arrested within the County for driving while intoxicated. This equipment was neither procured nor available on January 9, 1984, when the appellant was arrested. He contends that such unavailability was a Due Process violation under the United States and Texas Constitutions and the Code of Criminal Procedure.
Section 24 provides that:
(a) Each county with a population of 25,-000 or more according to the most recent federal census shall purchase and main*744tain electronic devices capable of visually recording a person arrested within the county for an offense under article 6701/ -1, Revised Statutes, or Subdivision (2) Subsection (a), Section 19.05 Penal Code.
(b) The sheriff of the county shall determine upon approval of the County Commissioners Court the number of devices necessary to ensure that a peace officer arresting a defendant for an offense listed in Subsection (a) of this section may visually record the defendant’s appearance within a reasonable time after the arrest.
(c) The fact that an arresting officer or other person acting on behalf of the state failed to visually record a person arrested for an offense listed in Subsection (a) of this section is admissible at the trial of the offense if the offense occurred in a county required to purchase and maintain electronic devices under this section.
The State concedes that Fort Bend County was required by law to have the video recording equipment on January 1, 1984, but failed to procure the device and make it available (either to those arrested within its jurisdiction or to its law enforcement agencies) until May 8, 1984. The recording equipment was accordingly not installed or available to appellant when he was arrested on January 9, 1984, and no videotape exists of appellant’s appearance within the required time shortly following his arrest.
Appellant testified at trial that he was not intoxicated at the time of his arrest, and argued that a videotape, if recorded at such time, would support his testimony.
My overriding concern in cases such as the one before us is the defendant’s right to a fair trial. One of the most basic elements of fairness in a criminal trial is that evidence tending to show innocence, as well as that tending to show guilt, be fully aired before the jury; more particularly, it is that the State in its zeal to convict a defendant not withhold, make unavailable, or suppress evidence that might exonerate him. See Moore v. Illinois, 408 U.S. 786, 810, 92 S.Ct. 2562, 2575-76, 33 L.Ed.2d 706 (1972) (Marshall, J., concurring in part, dissenting in part). This notion of fundamental fairness does not pose any irreconcilable conflict for the prosecutor, because the prosecutor must always be faithful to his client’s overriding interest that “justice shall be done.” No interest of the State is served, and no duty of the prosecutor advanced, by the suppression of evidence favorable to the defendant. The State, on the contrary, fulfills its most basic responsibility when it fully airs all the relevant evidence at its command. The State’s failure to disclose evidence of some value to the defense does not always mean the granting of a new trial, however; even a conscientious prosecutor will occasionally fail to appreciate the significance of some items of information, and there is a compelling interest in the finality of judgments.
But the interest in assuring that evidence tending to show innocence is brought to the jury’s attention is fundamental. Whether the withholding or suppression was the result of dilatory conduct on the part of the county commissioners, as in this case, or was negligent rather than deliberate, is, from the defendant’s perspective, immaterial: the defendant’s due process rights are affected in either case.
The prevailing view in the federal courts of the standard of materiality for suppression of evidence cases, involving neither a specific request for information nor other indications of deliberate misconduct, is essentially this: if there is a significant chance that the withheld evidence, developed by skilled counsel, would have induced a reasonable doubt in the minds of enough jurors to avoid a conviction, then the judgment of conviction must be set aside.1 This standard recognizes that the determination of materiality must be in terms of the impact of an item of evidence on the jury, and that this determination cannot always be made with certainty.
*745The State’s failure to comply with State law requiring the acquisition of video recording equipment amounted, in my view, to the withholding of evidence potentially favorable to the defendant, thereby corrupting the truth-seeking function of the trial process. Whether the evidence is directly contradictory to the evidence offered by the prosecution or not, from the defendant’s perspective the withholding of evidence potentially favorable to him is destructive to the truth-seeking process. See Giles v. Maryland, 386 U.S. 66, 100, 87 S.Ct. 798, 810, 17 L.Ed.2d 737 (1967) (For-tas, J., concurring). The burden on the defendant in establishing his entitlement to a new trial should be no different from the burden he would face if related testimony had been elicited by the prosecution.
Since the State which prosecutes an accused also has the duty to see that justice is done, it is unconscionable to allow it to undertake prosecution and then take advantage of its dilatory conduct to deprive the accused of anything which might be material to his defense.
Being held to a higher standard of conduct, the State must choose: either it must comply with the statute by timely installing and making available the required recording equipment, which may tend to exculpate, or it must dismiss the prosecution.
In its brief, the State blandly replies that “6701Í-1 does not require law enforcement agencies in any county to videotape DWI suspects, only that in counties with populations of 25,000 or more, videotaping equipment must be made available for law enforcement agencies by January 1, 1984.”
Such argument casually ignores the State’s compelling responsibility to comply with the law. It is more responsibility than the majority suggests in stating that “... counties ... maintain electronic devices capable of visually recording a person arrested for driving while intoxicated.” It required Fort Bend County, as one having a population more than 25,000, to timely obtain and make available the equipment necessary to record evidence which might exculpate a person arrested and later prosecuted for violating the law. And the judiciary must be particularly fastidious in exacting such compliance when it directly concerns criminal methodology. To accept the State’s argument would be to accede to the rapid evisceration of the legal — or perhaps even Due Process — rights of the accused.
I would sustain appellant’s third ground of error, reverse the judgment of the trial court, and direct that the trial court dismiss the information.
. See, e.g., United States v. Morell, 524 F.2d 550, 553 (2d Cir.1975); Ogden v. Wolff, 522 F.2d 816, 822 (8th Cir.1975); Woodcock v. Amaral, 511 F.2d 985, 991 n. 11 (1st Cir.1974); United States v. Miller, 499 F.2d 736, 744 (10th Cir.1974).