dissenting in which MEYERS and HOLCOMB, JJ., joined.
I agree that Article I, Section 14 of the Texas Constitution has been, and should continue to be, read to apply in the mistrial setting. I therefore agree with Parts I through III of the Court’s opinion. I dis*377agree, however, that any of the justifications for ignoring stare decisis apply to support overruling Bander v. State.1 I therefore dissent to Part IV, and to the majority’s disposition of this case. I would reject the State’s contentions that Bauder ought to be overruled, and proceed to its third ground for review, which the majority instead dismisses, to determine whether the court of appeals properly applied Bau-der to the facts of the instant case. Because the majority does not, I ultimately dissent.
I. FEDERALISM
It has by now been established beyond serious debate that in construing provisions of our own constitution “we must ultimately follow our own lights.”2 We may construe our own constitutional provisions either more protectively than their federal constitutional counterparts, as we did in Bauder, or less protectively, as we did in Hulit v. State.3 In Bauder we construed Article I, Section 14 of the Texas Constitution4 to be more solicitous of a defendant’ “valued right to have his trial completed by a particular tribunal”5 than the Supreme Court interpreted the Fifth Amendment to afford in Oregon v. Kennedy6 Now, little more than ten years after Bauder, the majority declares our construction of Article I, Section 14 to represent an elusive “ideal,” and declares that the “real ideal” is the Supreme Court’ standard in Kennedy,7 I do not believe the majority1 belated arguments in favor of the federal “ideal” are sufficiently compelling to justify disregarding stare decisis.8
As the majority develops in Part III of its opinion, this Court’s predecessor, the Texas Court of Appeals, long ago held that the concept of jeopardy, as embodied in what is now Article I, Section 14 of the Texas Constitution, is broad enough to protect a defendant’s right to proceed to a final verdict, once the jury has been impaneled and sworn.9 It did so long before the United States Supreme Court first expressly recognized, in 1949, that a criminal defendant has a “valued right” under the Fifth Amendment “to have his trial completed by a particular tribunal.”10 But *378once the Fifth Amendment’ double jeopardy protection was found to be applicable to the states by incorporation through the Fourteenth Amendment, in 1969,11 this Court, like many state courts across the country, allowed the Supreme Court to take the lead in developing double jeopardy doctrine. Thus, in the 1970s and 1980s, until Bander came along, we were content to follow the dictates of federal precedent, including Oregon v. Kennedy, as a matter of federal jeopardy law, without addressing the independent question of whether we ought to construe our analogous state constitutional provision any differently.12 Federal jeopardy law had become the template for decision. Bander required us to decide whether, in applying our own jeopardy provision in a case of first impression, we would conform to the federal template or “follow our own lights.”
The majority acknowledges that an historical analysis of our own jeopardy provision would not shed any light on the question, either now or at the time Bander was decided.13 The question whether double jeopardy protection is implicated by prose-cutorial misconduct that provokes a defendant to request a mistrial arose during the interim when state courts were deferring to the federal template. Cases like United States v. Jom,14 United States v. Dinitz,15 and Arizona v. Washington,16 which formed the doctrinal backdrop for Oregon v. Kennedy, were all decided during this interim. It was a new gloss on double jeopardy law. The question in Kennedy was how far to go with that new gloss under the Fifth Amendment, consistent with the principles of double jeopardy. And squarely presented to this Court for the first time in Bander was whether to adopt that gloss at all under Article I, Section 14, and, if so, how far to take it consistently with our own understanding of the proper scope of double jeopardy protections. That is all the majority has done today. It simply disagrees with the majority that decided Bander.
II. PROSECUTORIAL MISCONDUCT
The criminal defendant’s right to have his trial completed by the tribunal originally selected to decide his fate, once jeopardy has attached, has never been regarded as absolute. Indeed, when first recognized by the Supreme Court in Wade v. Hunter, that right was immediately balanced against “the public’s interest in fair trials designed to end in just judgments.”17 This is the reason that “manifest necessity” will justify a mistrial, even in the event of ordinary judicial or prosecutorial error. *379As Justice Stevens explained for the Supreme Court in Arizona v. Washington:
Because of the variety of circumstances that may make it necessary to discharge a jury before a trial is concluded, and because those circumstances do not invariably create unfairness to the accused, his valued right to have the trial concluded by a particular tribunal is sometimes subordinate to the public interest in affording the prosecutor one full and fair opportunity to present his evidence to an impartial jury. Yet in view of the importance of that right, and the fact that it is frustrated by any mistrial, the prosecutor must shoulder the burden of justifying the mistrial if he is to avoid the double jeopardy bar. His burden is a heavy one. The prosecutor must demonstrate “manifest necessity” for any mistrial declared over the objection of the defendant.18
Courts need not inquire about manifest necessity for a mistrial, however, when the defendant himself asks for or consents to it. The defendant’s consent signals his election to forego his right to proceed to verdict with the first tribunal even though prejudicial error may have been injected into the proceedings, and there is no jeopardy bar to reprosecution.19
The defendant may reasonably conclude that a continuation of the tainted proceeding would result in a conviction followed by a lengthy appeal and, if a reversal is secured, by a second prosecution. In such circumstances, a defendant’s mistrial request has objectives not unlike the interests served by the Double Jeopardy Clause — the avoidance of the anxiety, expense, and delay occasioned by multiple prosecutions.20
The choice must be the defendant’s, to-wit: whether he believes his interest in avoiding anxiety, expense, and delay is better served by proceeding to verdict with the first tribunal, and possible acquittal, or by cutting the first prosecution short in order to proceed more expeditiously with a second. And in this context, “[t]he important consideration, for purposes of the Double Jeopardy Clause, is that the defendant retain primary control over” that decision.21
At some point, of course, ordinary prose-cutorial error may rise to the level of prosecutorial misconduct. And, at some point, prosecutorial misconduct may become so egregious that it cannot fairly be said that the defendant has retained primary control over the decision whether to proceed to verdict or abort the proceedings. The question for decision in Oregon v. Kennedy was how to identify prosecuto-rial misconduct that is so manipulative that it deprives the defendant of a “meaningful” choice of which option best protects his interest in avoiding as much as possible the anxiety, expense, and delay inherent in criminal prosecution.22 In making this determination, a court must be mindful of the competing values that are at stake — on the one hand, the defendant’s valued right to proceed to verdict with the first tribunal, and on the other, the State’s equally valued right to “one full and fair opportunity to present [its] evidence to an impartial *380jury.”23 At what point does prosecutorial misconduct cause the scale to tip in favor of the defendant’s right, notwithstanding that it was he who requested the mistrial?
In Oregon v. Kennedy, the Supreme Court answered this query for Fifth Amendment purposes by holding that a criminal defendant loses primary control over the critical choice whether to proceed to verdict or abort only “where the governmental conduct in question is intended to ‘goad’ the defendant into moving for a mistrial[,]” and that only then “may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion.”24 But why should this be so? It is not self-evident that the specific intent to provoke a mistrial request should be the only degree of prosecutorial culpability sufficient to reinvigorate the defendant’s valued right to proceed to verdict with the first tribunal despite the fact that he asked for the mistrial. The State is entitled to one full and fair opportunity to present its evidence to an impartial jury. It can reasonably be argued that other, lesser degrees of prosecutorial culpability should suffice to justify the conclusion that the State has abused, and therefore forfeited, that opportunity. When the prosecutor intentionally commits misconduct he knows will seriously compromise the fairness of the trial, he has arguably squandered his one full and fair opportunity to present his case, so that the State’s interest can no longer be said to outweigh the defendant’s — even if he did not harbor a specific intent to provoke a mistrial. If his intention was to inject manifest unfairness into the proceeding, and he was consciously indifferent with respect to whether this intentional misconduct illegitimately increased his chances of gaining a conviction or provoked the defendant into asking for a mistrial, the argument is practically as compelling that he has forfeited his one full and fair opportunity to present his case as when it was his specific intent to provoke a mistrial. Either way, a reasonable argument can be made that the prosecutor has manipulated the defendant’s choice to such an extent that it is no longer primarily the defendant’s, and the State can no longer show that its interest outweighs the defendant’s in the constitutional balance.
This is, in essence, what we held in Bauder,25 It was not an unreasonable or an outlandish holding. It was certainly not a unique holding.26 It may even have been the more logical holding, given the constitutional principles involved.27 In any event, it was not such a manifestly erroneous holding that we can justify overruling it just because there is a majority of the Court presently willing to do so. I next *381address what I understand to be the majority’s asserted reasons for doing so.
III. DISREGARDING STARE DECISIS
As I break down the majority’s opinion, it has identified essentially six flaws in the Bauder analysis that, taken together, are serious enough to justify its demise. I do not share any of those concerns. I will respond to them in turn.
A. Only a Specific Intent to Provoke Mistrial Triggers Jeopardy Concerns
Like the Supreme Court in Oregon v. Kennedy, the majority believes that a specific prosecutorial intent to provoke a mistrial “is critical to determining whether [the prosecutor], rather than the defendant, has exercised primary control over whether a mistrial is sought.”28 For reasons I have already explained, a specific intent to provoke mistrial is not the only degree of prosecutorial culpability that can reasonably be found to trigger jeopardy protection. The majority does not explain why a slightly lesser degree of prosecutorial culpability could not also justify a court in concluding that the prosecutor has forfeited his one full and fair opportunity to present his case, thus tipping the balance in the defendant’s favor on the double jeopardy scale. In Bauder we essentially held that a prosecutor who consciously disregards a known risk that his deliberate misconduct will provoke a mistrial, even if a mistrial was not necessarily his conscious objective, nevertheless harbors a degree of culpability sufficient to forfeit his one full and fair opportunity.29 The majority does not convince me that this cannot reasonably be regarded as a sufficient level of culpability to justify jeopardy protection.
The majority argues that our earliest case law deemed the premature termination of a trial to implicate jeopardy concerns only because it was the functional equivalent of an acquittal,30 and a prosecutor whose conscious objective is not necessarily to provoke a mistrial cannot be said to have sought the functional equivalent of an acquittal.31 But this is not self-evident to me either. A prosecutor who has consciously disregarded a substantial risk that his deliberate misconduct would provoke a mistrial has also consciously disregarded the substantial risk his conduct would cause the functional equivalent of an acquittal, even if that was not necessarily his conscious objective. To reiterate: It is not unreasonable for a court to conclude, as we did in Bauder, that such a prosecutor has abused, and therefore forfeited, his one full and fair opportunity at a verdict favorable to the State.
B. Bauder Is Due Process in Double Jeopardy Clothing
The majority claims that, by focusing on the fact that a slightly lesser degree of prosecutorial culpability than specific intent may also compromise the defendant’s right to a fair trial before the first tribunal selected, the Court in Bauder “conflates the double jeopardy protection with more generalized notions of due process and due *382course of law.”32 Elsewhere it has been suggested that to apply a lesser standard of culpability than specific intent to justify jeopardy relief is merely a means for courts to punish prosecutors, rather than to scrupulously serve double jeopardy principles.33 I disagree on both counts.
Both the defendant and the State are entitled to one full and fair opportunity for trial. Ordinarily, double jeopardy entitles the defendant to proceed to verdict with the first tribunal selected. Manifest necessity or the defendant’s own consent may suffice to defeat his constitutional interest, but not otherwise. This means that sometimes the defendant must experience the anxiety, expense, and delay of a second trial even when his first trial was rendered unfair for reasons unattributable to him. But he should not necessarily have to suffer that consequence when the retrial was attributable to deliberate misconduct on the part of the prosecutor. When that misconduct so compromised the fairness of trial as to render mistrial inevitable, and the prosecutor was at least consciously indifferent to that result, the State may reasonably be said to have abused its one full and fair opportunity to present its evidence to an impartial tribunal, and it can no longer carry its burden to demonstrate that its interest in the jeopardy balance outweighs the defendant’s, even when it was the defendant who requested a mistrial. Thus, jeopardy principles are vindicated. It is true that the fairness that due process and due course of law guarantee may also be vindicated and that the prosecutor may feel he is being made to pay a heavy price for his misconduct. But these consequences are incidental to, and do not by any means displace, the jeopardy analysis.
C. Later Case Law Is Inconsistent with Bauder
The majority complains that if we were correct in Bauder to find a lesser prosecu-torial culpability to be sufficient to trigger jeopardy protection in the context in which the trial court grants a defendant’s motion for mistrial, we should also have held, as other jurisdictions have done, that even when the trial court erroneously denies the mistrial, we should bar retrial after the defendant successfully challenges his conviction on appeal.34 In Ex parte Davis35 and Ex parte Mitchell,36 we expressly declined to do so. We held that the defendant had not been deprived of his valued right to proceed to verdict with the first tribunal, since his trial was prosecuted to a conclusion, albeit a conviction. This may well represent a logical inconsistency in our case law.37 But if so, it applies with equal illogic whether the prosecutor consciously intended to cause a mistrial or he consciously disregarded a substantial risk his misconduct would provoke a mistrial.38 *383Thus, to the extent these cases are logically unfaithful to Bauder, they are equally unfaithful to the Oregon v. Kennedy standard. It seems to me that if any of our precedent deserves closer scrutiny, it would be Davis and Mitchell, not Bauder.
D. The Bauder Standard Is Too Amorphous
I do not disagree with the majority that mistrials that result in a jeopardy bar ought to be relatively rare occurrences.39 The Bauder standard, particularly as it was later elaborated in Ex parte Peterson, 40 should produce jeopardy bars only in a very slightly greater number of cases than the Oregon v. Kennedy standard. The majority complains that some of the language in Bauder seemed to blur the concept of recklessness, creating a danger that it might be understood as something akin to the prosecutorial “overreaching” standard that the Supreme Court flatly rejected in Oregon v. Kennedy.41 Again, whatever imprecision may have inhered in the specific language of Bauder itself, and whatever confusion it may have engendered, was later remedied in our opinion in Peterson. I do not think any reasonable prosecutor would now mistake the standard explicitly set out in Peterson as a rule imposing a jeopardy bar on the basis of mere prosecutorial “overreaching.” It makes little sense to discard a legal standard barely three years after, in the ordinary evolution of our decisional law, we have finally perfected it.
I cannot agree with the majority that, even as perfected, the standard articulated in Peterson will not adequately equip prosecutors to be able to tell that deliberate misconduct sufficient to trigger double jeopardy protection from that deliberate misconduct which is not.42 A prosecutor knows he should never engage in deliberate misconduct — that is to say, it should never be his design and conscious objective to commit what he recognizes to be misconduct. Under Bauder/Peterson, if he does so with the conscious objective to provoke a mistrial, or with a conscious disregard for the substantial risk it would cause a mistrial, double jeopardy protections will apply. Either state of mind can be established (or refuted) by an express assertion from the prosecutor, or by evidence of the circumstances surrounding his misconduct such as those that we enumerated in Peterson.43 The degree of risk that the prosecutor’s deliberate misconduct will result in a mistrial is largely a function of the amount of unfair prejudice it injects into the proceedings. The more unfair prejudice his deliberate misconduct injects, the more compelling will be the inference that he was aware of the risk *384(because it was, objectively speaking, more obvious), and consciously disregarded it.44 This standard is not so amorphous that it cannot fairly be imposed upon responsible prosecutors.
E. Trial Court Will Stop Granting Mistrials
The majority fears that the overly “broad” standard in Bauder will cause trial courts to unduly hesitate to grant meritorious mistrials on account of the jeopardy consequences.45 I do not believe the Bau-der standard, especially as solidified in Peterson, is so much broader than that of Oregon v. Kennedy that it will substantially increase whatever public or media pressure trial courts feel to eschew meritorious mistrials. In any event, I do not share the majority’s (and the Kennedy Court’s) cynical distrust of trial judges to follow their oaths to uphold the law.46 A conscientious trial court should always exercise its discretion to grant any motion for mistrial that it fairly judges to be meritorious, regardless of the potential for later double jeopardy consequences. The presumption that we should institutionalize in our case law is that a trial court will do so, not that it will not.47
The majority observes that this tendency it perceives in trial courts to want to avoid mistrials could have been “ameliorate[d].”48 We could have held, in Davis and Mitchell, that double jeopardy protections also apply when a conviction is reversed on appeal due to the failure of the trial court to grant a meritorious mistrial following misconduct that the prosecutor committed with conscious disregard of the substantial risk that it would cause a mistrial. Such a holding would have created at least some disincentive for trial courts to avoid granting meritorious mistrials.49 If I shared the majority’s premise that we cannot trust trial courts to follow the law, this observation would cause me to question the correctness of our decisions in Davis and Mitchell, not the correctness of our decisions in Bauder and Peterson.
F. Bauder Has Proven Unworkable
The majority documents at some length the “messy jurisprudence flowing from Bauder.”50 It is true that, since Bauder, *385the Court has not always been entirely consistent in its articulation of the standard.51 But a certain amount of fine-tuning is inevitable in the evolution of deci-sional law.52 I do not understand the majority to hold that our most recent clarification was a failure — in fact, quite the opposite, since it is at least acknowledged that what Bander meant by “recklessness” was firmly nailed down in Ex parte Peterson.53 I cannot agree that a case barely three years old CPeterson) ought to be overruled on the ground that it has proven unworkable. We had no problems applying it in our recent decision in Ex parte Wheeler,54 In that case we overruled the court of appeals and reinstated the trial court’ ruling, which had denied double jeopardy relief. The only real point of contention between this Court and the court of appeals was whether the court of appeals had erred in failing to give proper deference to the trial court’s application of the Bauder/Pe-terson standard.55 There was no confusion evident at any level of the proceedings as to the substance of that standard. At this point, only time can tell whether further “refinement” will be necessary.56 I cannot fathom the majority’s haste and determination to dispatch a standard so soon after we have managed, at least with apparent success, to work the kinks out of it.
IV. APPLICATION OF BAUDER/PETERSON
We originally remanded this cause to the court of appeals for its reconsideration in light of Peterson, which had come down after the court of appeals’ original opinion.57 Thus, the court of appeals was the first to conduct an analysis under the refined Peterson standard. The court of appeals meticulously applied the Peterson factors to conclude that our state constitutional jeopardy protection applied to bar retrial. In its petition and its brief on the merits, the State disagrees with the court of appeals’ conclusion, but does not identify any substantial flaw in its application of the law as expounded in Peterson. I do not find any, and would therefore affirm its judgment.
CONCLUSION
The majority’s bottom-line seems to be that the Bauder/Peterson standard is too broad, and not adequately tethered to legitimate double jeopardy principles.58 But, as I have endeavored to develop in Part II of this opinion, the doctrinal basis for that standard is more than evident enough, and it embodies an eminently reasonable construction of Article I, Section 14, our state constitutional jeopardy provision. I therefore dissent to Part TV of the Court’s opinion and to its disposition of the case. I would proceed to the State’s third ground for review and hold that the court *386of appeals did not err in its application of the Bauder/Peterson standard. Because the Court’s disposition instead moots that inquiry, I respectfully dissent.
. 921 S.W.2d 696 (Tex.Crim.App.1996).
. Olson v. State, 484 S.W.2d 756, 762 (Tex.Crim.App.1969). See also Heitman v. State, 815 S.W.2d 681 (Tex.Crim.App.1991); Bauder v. State, supra, at 700-01 (Clinton, J., concurring).
. 982 S.W.2d 431 (Tex.Crim.App.1998).
. Tex. Const, art. I, § 14 (“No person, for the same offense, shall be twice put in jeopardy of life or liberty, nor shall a person be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction.”).
. Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 93 L.Ed. 974 (1949).
. 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982).
. Op. at 371.
. That precedent is less than "ideal” is no basis for overruling it, even when construing constitutional law, in which context stare de-cisis carries the least weight. Dickerson v. United States, 530 U.S. 428, 443, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000).
. Powell v. State, 17 Tex. Ct.App. 345 (1884).
. Wade v. Hunter, supra. See also Crist v. Bretz, 437 U.S. 28, 31, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978) ("The reason for holding that jeopardy attaches when the jury is empaneled and sworn lies in the need to protect the interest of an accused in retaining a chosen jury.”); id., at 45-47, 98 S.Ct. 2156 (Powell, J., dissenting) ("defendant’s valued right to have his trial completed by a particular tribunal” was first developed as constitutional doctrine by state courts during 19th century, *378and only later acknowledged by the Supreme Court in Wade).
. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).
. E.g., Chvojka v. State, 582 S.W.2d 828 (Tex.Crim.App.1979); Anderson v. State, 635 S.W.2d 722 (Tex.Crim.App.1982); Collins v. State, 640 S.W.2d 288 (Tex.Crim.App.1982); Crawford v. State, 703 S.W.2d 655 (Tex.Crim.App.1986).
. Op. at 354.
. 400 U.S. 470, 485 n. 12, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971) ("[W]here a defendant’s mistrial motion is necessitated by judicial or prosecutorial impropriety designed to avoid an acquittal, reprosecution may well be barred.”).
. 424 U.S. 600, 609, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976) ("The important consideration, for purposes of the Double Jeopardy Clause, is that the defendant retain primary control over the course to be followed in the event of [judicial or prosecutorial] error.”).
. 434 U.S. 497, 508, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978) ("[T]he strictest [constitutional] scrutiny is appropriate ... when there is reason to believe that the prosecutor is using the superior resources of the State to harass or to achieve a tactical advantage over the accused.”).
. 336 U.S. at 689, 69 S.Ct. 834.
. Id. at 505, 98 S.Ct. 824.
. United States v. Dinitz, supra.
. Id. at 608, 96 S.Ct. 1075.
. Id. at 609, 96 S.Ct. 1075.
.See Oregon v. Kennedy, supra, at 689, 102 S.Ct. 2083 (Stevens, J., concurring in the judgment) (it is sufficient to invoke double jeopardy protections that "the court is persuaded that egregious prosecutorial misconduct has rendered unmeaningful the defendant's choice to continue or to abort the proceedings”).
. Arizona v. Washington, supra, at 505, 98 S.Ct. 824.
. 456 U.S. at 676, 102 S.Ct. 2083.
. 921 S.W.2d at 699.
. Other state courts, both before and after our holding in Bauder, have construed their own state constitutional jeopardy provisions more protectively than Oregon v. Kennedy construed the Fifth Amendment protection, each essentially finding that an intent to goad the defendant into a mistrial is not the only degree of prosecutorial culpability sufficient to trigger double jeopardy protection. E.g., State v. Kennedy, 295 Ore. 260, 666 P.2d 1316 (1983); Pool v. Superior Court, 139 Ariz. 98, 677 P.2d 261 (1984); Commonwealth v. Smith, 532 Pa. 177, 615 A.2d 321 (1992); State v. Breit, 122 N.M. 655, 930 P.2d 792 (1996); State v. Rogan, 91 Hawai'i 405, 984 P.2d 1231 (1999); People v. Batts, 30 Cal.4th 660, 68 P.3d 357, 134 Cal.Rptr.2d 67 (2003).
.See Oregon v. Kennedy, supra, at 686, 689-690, 102 S.Ct. 2083 (Stevens, J., concurring in the judgment).
. Op. at 359.
. In Ex parte Peterson, 117 S.W.3d 804, 817 (Tex.Crim.App.2003), we elevated the level of prosecutorial culpability to "conscious disregard for a substantial risk that” the prosecutor’s deliberate misconduct would provoke a mistrial. (Emphasis added.) I have no quarrel whatsoever with this adjustment to the standard, and I joined the per curiam majority in Peterson.
. See Powell v. State, supra, at 351.
. Op. at 359.
. Op. at 358.
. See Peter J. Henning, Prosecutorial Misconduct and Constitutional Remedies, 77 Wash. U.L.Q. 713, 811-817 (1999) (state cases extending state constitutional jeopardy protections to cover lesser degrees of prosecuto-rial culpability than Oregon v. Kennedy found to have jeopardy implications for Fifth Amendment purposes "really are responding to the broader problem of finding an effective means to punish prosecutorial misconduct”).
. Op. at 359, 364-65, 371.
. 957 S.W.2d 9 (Tex.Crim.App.1997).
. 977 S.W.2d 575 (Tex.Crim.App.1997).
. See Rick A. Bierschbach, Note, One Bite at the Apple: Reversals of Convictions Tainted by Prosecutorial Misconduct and the Ban on Double Jeopardy, 94 Mich. L.Rev. 1346 (1996).
. See Ex parte Davis, supra, at 13 ("Applicant has not directed us to any cases ... where the Supreme Court has explicitly extended Oregon v. Kennedy to apply to instances where *383verdicts of guilty have been reversed on appeal due to prosecutorial misconduct, and therefore holding retrials as jeopardy barred.”); Ex parte Mitchell, supra, at 579 & 580 ("Appellant does not direct us to any cases where the Supreme Court has explicitly extended Oregon v. Kennedy to apply to instances where verdicts of guilty have been reversed on appeal, due in whole or in part to prosecutorial misconduct, and thereby holding retrials as jeopardy barred.”) ("Only where the prosecutor’s intentional, and deliberate misconduct goads the accused into moving for a mistrial — and that motion is granted — is the accused’s right to be tried to verdict by the first tribunal, a right afforded to him by the double jeopardy clause of the Fifth Amendment, violated.”).
. Op. at 362.
. 117 S.W.3d at 816-817.
. Op. at 362-63.
. Op. at 363-64.
. 117 S.W.3d at 818-19.
. This is not to say that the fact finder could not, under some circumstances, reasonably conclude that the prosecutor was simply unaware of the substantial risk, even though an ordinary prosecutor ought to have been aware of it, and his failure to perceive it constitutes a gross deviation from the standard of care that an ordinary prosecutor would exercise under the circumstances. See Tex Pen.Code § 6.03(d). To borrow from what we said in Peterson, supra, at 818: “just as a dog knows the difference between being kicked and being stumbled over, [prosecutors] can distinguish between intentional or reckless conduct and inadvertent or negligent mistakes.”
. Op. at 364-65.
. See Oregon v. Kennedy, supra, at 687 n. 22, 102 S.Ct. 2083 (Stevens, J. concurring in the judgment) (complaining that the majority' assumption that trial courts will be deterred from granting meritorious mistrials is "irrational”).
. Moreover, the argument that the Bauder standard will hurt defendants more than help them because it will make trial courts reluctant to grant meritorious mistrials was squarely raised in Presiding Judge McCor-mack’s dissenting opinion. 921 S.W.2d at 704. The Court considered this argument at the time and rejected it.
. Op. at 364.
. Id. at 364.
. Op. at 365-68.
. Id. at 367. See Ex parte Peterson, supra, at 823-25, 829-30 (Hervey, J., dissenting).
. One need look no further than Oregon v. Kennedy itself to see that it often takes the Supreme Court multiple opinions to hone a constitutional standard. In Kennedy the Supreme Court rejected language from a number of earlier opinions that would have provided federal jeopardy protection for mistrials caused by prosecutorial "overreaching.'' 456 U.S. at 677-79, 102 S.Ct. 2083.
. Op. at 368-69.
. 203 S.W.3d 317 (Tex.Crim.App.2006).
. Id. at 325-26.
. Op. at 370-71.
. Ex parte Lewis, 165 S.W.3d at 381-82.
.Op. at 370-71.