dissenting.
The State confesses error to gain another trial, and the Court assents. I dissent.
The principal witness against appellant was his coindictee. After the State completed its direct examination of the witness, pursuant to Gaskin v. State, 172 Tex.Cr.R. 7, 353 S.W.2d 467 (Tex.Cr.App.1961), the trial court ordered the prosecution to turn over to counsel for appellant a transcription of recorded interviews of the witness by an assistant district attorney, who was to represent that the transcription was true and correct. However, counsel later learned and demonstrated it had been edited favorably to the State, principally by deletion of certain statements made by the assistant district attorney about the witness making “it easier and light on yourself.”
The Supreme Court of the United States has made it absolutely clear that a trial need not be concluded by a jury verdict in order for an accused to assert that a prospective second trial is precluded by the Double Jeopardy Clause of the Fifth Amendment. United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971). Accordingly, the Clause bars a second trial when the first is aborted because the prosecutor goaded an accused into moving for a mistrial. Oregon v. Kennedy, 456 U.S. -, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). Cf. United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976): Clause does protect against governmental action done in bad faith with intent to provoke mistrial motion, id., 424 U.S. at 611, 96 S.Ct. at 1081. The lesson is that egregious prose-cutorial misconduct will forfeit the right of the State to subject an accused to a second trial.
In the instant case, however, a mistrial was not sought or granted — indeed, during the trial, counsel for appellant were not aware of the fact that the prosecution had severely redacted the transcription. Confronted with similar circumstances in Durrough v. State, 620 S.W.2d 134 (Tex.Cr.App.1981), also from Bexar County, this Court opined:
“The Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrials so as to afford the prosecution a more favorable opportunity to convict the defendant. [Citation omitted] But when the trial proceeds to its conclusion despite a legitimate claim of serious prejudicial error, the Double Jeopardy Clause will present no obstacle to a retrial if the conviction is reversed on appeal. United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); Ball v. United States, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). In the present case the alleged misconduct did not result in a mistrial. The appellant was found guilty of capital murder and sentenced to death. * * * We reject the appellant’s contention that the alleged misconduct was a bar to further prosecution for this offense.”
Id., at 139.
With deference, I point out that the other side of “a more favorable opportunity to convict” is, as the Dinitz Court phrased it, “to prejudice ... prospects for an acquittal,” id., 424 U.S. at 611, 96 S.Ct. at 1081. Here during a posttrial hearing appellant proved that the transcription marked as Defendant’s Exhibit 7 is an altered version of the original: four pages had been omitted,1 one page was transposed and pagina*397tion at the bottom of each remaining page had been cut off to conceal the fact that the transcription had been altered. Obviously, the prosecutor intended to and did deprive appellant of a meaningful opportunity to demonstrate bias and motive of the principal witness against him. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); Harris v. State, 642 S.W.2d 471 (Tex.Cr.App.1982). Prospects for an acquittal were purposefully harmed by the prosecutor.
So, to say, as the Court did in Durrough, that because prosecutorial misbehavior did not result in a mistrial the Double Jeopardy Clause is not a bar to a second trial, is to cost appellant some of the advantages secured by the Double Jeopardy Clause — the freedom from extended anxiety, expense and delay and the necessity to confront the government’s case once — United States v. Dinitz, supra, 424 U.S. at 608, 96 S.Ct. at 1080.
Moreover, since a question of former jeopardy is fundamental and may be raised for the first time on appeal, Muncy v. State, 505 S.W.2d 925 (Tex.Cr.App.1974), we may also examine the issue in light of Article I, § 14 of the Texas Bill of Rights. See Duckett v. State, 454 S.W.2d 755, 757 (Tex.Cr.App.1970) and Jones v. State, 586 S.W.2d 542, 544 (Tex.Cr.App.1979). And, as Justice Brennan pointed out in his concurring opinion in Oregon v. Kennedy, supra, a state is not required to construe its own constitutional provision in lockstep with the federal counterpart.
Recognizing the values and interests of an accused that the constitutional prohibition against double jeopardy was intended and designed to protect — one being “a valued right to have his guilt or innocence determined before the first trier of fact” and “upon the proof the State could adduce,” Torres v. State, 614 S.W.2d 436, 441, 443 (Tex.Cr.App.1981) — this Court has ordered a criminal cause dismissed upon a finding that a second prosecution violated the Double Jeopardy Clause of the Constitution of the State of Texas, as well as of the United States, id., at 443.2
When, as here, the record clearly reveals utterly unacceptable prosecutorial misconduct3 to the demonstrable prejudice to appellant, or substantial threat thereof, dismissal of the indictment is an appropriate remedy.
*398Accordingly, I would order the prosecution dismissed.
TEAGUE and MILLER, JJ., join.. Deleted were, among others, the following statements the prosecutor made to the witness:
*397“I know what happened. I want you'to understand that if you testify in the case, that if I told you, if I promised you anything, then your testimony would be worthless. So I can’t promise you anything at this stage of the proceeding; except that, if you cooperate and if you tell the truth .. . then I’ll see that you get treated fairly, appropriately, but I can’t say I’ll turn you loose. I can’t say I’m going to give you life. I can’t tell you I’m going to give you a term of years because I don’t know. It will depend on what happens to Mr. Buffington. * * * You understand what I’m telling you. He told you to tell the truth about it and I believe that what you told us is the truth in part, but I think you left some things out. Let me tell you something else. • Anything you tell me right here, right now, I promise you it is not going to be used against you in any way. I promise you that. * * * What I want to know is something I could use against Buffington. He’s the one I’m going to try first. He’s going to go before anyone else. And we’ll see what happens to you’ll after he is tried. He’s the one I’m interested in.”
Later on the prosecutor put the blame on appellant, telling the witness that if it had not been for appellant “you would be over there on Poplar and Zarzamora right now sitting in the shade drinking your wine,” adding, “the question is whether you are ever going to go back out and drink the wine and that depends on you, Charles.”
. The State concerns which underlie implementing the right of a speedy trial are strikingly similar. E.g., Fariss v. Tipps, 463 S.W.2d 176, 178-179 (Tex.1971) and Courtney v. State, 472 S.W.2d 151, 153-154 (Tex.Cr.App.1971). When an accused makes a prima facie showing of prejudice which is not rebutted, the Court has granted habeas corpus relief and ordered the prosecution dismissed. Ex parte McKenzie, 491 S.W.2d 122 (Tex.Cr.App.1973).
. “It shall be the primary duty of all prosecuting attorneys ... not to convict, but to see that justice is done.” And to that end, “[tjhey shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused,” Article 2.01, V.A.C.C.P. Moreover, along with the trial court and other officers of the court, they have the duty “to so conduct themselves as to insure a fair trial ... [and] not impair the presumption of innocence ..., Article 2.03, id.