OPINION ON STATE’S MOTION FOR REHEARING
CLINTON, Judge.On original submission, a panel of the Court remanded this cause to the trial court for a reassessment of punishment in accordance with North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). The panel indicated that appellant had filed a motion for new trial attacking his ten year sentence, assessed pursuant to a plea bargain, then later declined the State’s offer to again recommend a ten year punishment. The panel granted appellant relief from a twelve year sentence assessed by the trial court without a recommendation from the State, because the increased punishment was clearly due to a misdemeanor conviction extant at the time of the original sentencing.
In a stout motion for rehearing, the State Prosecuting Attorney urges our application of Ehl v. Estelle, 656 F.2d 166 (CA5 1981)1 to the facts of this case; that motion has occasioned our careful review and reconsideration of the facts reflected by the record before us.
We first observe that the essence of Ehl is embodied in Texas law already. See Bouie v. State, 565 S.W.2d 543 (Tex.Cr.App.1978); and Alvarez v. State, 536 S.W.2d 357 (Tex.Cr.App.1976). Indeed the logic of Ehl’s exegesis can hardly be assailed with feeling, viz: the rationale of North Carolina v. Pearce, supra,2 and its progeny does not apply where the defendant — aware of the price of rejecting a plea offer — nevertheless subsequently withdraws his entered guilty plea or otherwise attacks the sentence after conviction; restated, a belated repudiation of a plea bargain places a defendant in the same posture as one who refuses to carry out his part of the bargain pretrial and serves to release the prosecutor from the obligation to carry out his part as well.
But the record in the instant case does not establish appellant repudiated the plea bargain; on the contrary it affirmatively indicates that appellant did in all respects carry out his part of the bargain, but was thereafter swept up in a whirlwind of the prosecutor’s oversight, machinations, amendment of conditions, and ultimate frustration erupted into anger. In sum, there are several reasons why Ehl does not apply to the case before us.
Appellant Did Not Attack His Conviction
Appellant was arrested the day after he committed an aggravated robbery, and he readily confessed to the crime. The next day, a charging complaint issued bearing *433Cause No. 302,911. The following day, counsel was appointed and the parties appeared for trial.3 There is no indication from the record that appellant agreed to, or was asked to waive indictment. The transcription of the hearing reflects appellant was admonished as to the range of punishment, though he was not advised that the court was not bound to follow the prosecutor’s recommendation. In discussing the plea bargaining agreement with appellant, the court inquired,
“Do you personally agree to that plea bargaining agreement being aware that you have no right of appeal if I follow that... agreement?”4
Appellant did agree.
He then entered his plea of guilty, and the prosecutor offered his judicial confession, agreement to stipulate and waiver of constitutional rights.5 This document states in part: “I intend to enter a plea of guilty and the prosecutor will recommend that my punishment should be set at ten (10) years [confinement], and I agree to that recommendation.” The court assessed the punishment at ten years. The trial court then said,
“You may have ten days in which to file a Motion for New Trial or a motion in Arrest of Judgment, or you may waive that time and be sentenced now. What is your desire in that matter?
[DEFENSE COUNSEL]: He wishes to be sentenced today.
THE COURT: * * * Mr. Palm, you don’t want your ten days? MR. PALM: No.”
The court thereupon pronounced the sentence at not less than five nor more than ten years confinement, with sentence to begin September 18, 1979, the date of the offense.
Three days after the plea, the district clerk issued an order to the Harris County Sheriff to deliver appellant to the Department of Corrections “after the tenth (10th) day following the date of sentencing.”6
The record does not reflect when, but clearly it was sometime between the date of the district clerk’s order (September 24), and October 1, the deputy district clerk assigned to the convicting court “discovered,”
“I could not complete my paper work7 because I could not find a waiver of indictment executed in the Court trial. I asked for the defendant to reappear in Court and possibly retaking the plea or something of that nature. * * * I issued a bench warrant.”
The record next reflects a truly inscrutable preprinted form “Motion for New Trial” ostensibly filed on behalf of appellant on October 1, 1979.8 The ground alleged to justify a new trial is that “the judgment ... is contrary to the law and evidence in said cause.” There is no indication from either the instruments contained in the record, or the testimony, that appellant was present at any hearing on this motion for new trial, or, for that matter, that appellant was even aware of its existence.
*434Another form document dated the same day and executed by a deputy district clerk, recites: “By Order of the Court on the 1 day of October, A.D. 1979 the following action is directed in the above styled and numbered cause:;” an “X” appears in a square by which it is printed “Motion for new trial granted.”
So, this latter document, which we liberally construe to be an order of the trial court, indicates that on the same day this late motion9 was filed by someone, the trial court granted it.10
Strangely enough, on the next day, October 2, the Sheriff of Harris County delivered appellant to the Department of Corrections.
Nine days after he had arrived at the Department of Corrections (October 10), a bench warrant was issued for the apparently unwitting appellant, stating that Cause No. 302,911 was “set on the docket for the 16th day of October, 1979.” On October 16, appellant was again present in Harris County-
Appellant’s Uncounseled Refusal to Sign a Waiver of Indictment Did Not Constitute a Repudiation of the Original Bargain
Though the record does not reflect the date appellant actually arrived back in Harris County, the only inference the record supports is that it was his refusal — without counsel — to sign a waiver of indictment for the district clerk which caused the prosecutor to withdraw his offer on October 16: the record contains an instrument appointing new counsel on that date; at the bottom of this instrument appears a handwritten notation:
“All recommendations by the State are off.”11
On the same day, appellant was indicted in Cause No. 304,316, for the identical conduct alleged against him in the complaint previously filed in Cause No. 302,911.
Appellant Did Not Insist on a Trial on the Merits
Approximately one month later, on November 14, Cause No. 304,319 was called for trial. Appointed counsel insisted that a plea of former jeopardy be considered before anything else, and upon arraignment, when appellant replied, “not guilty,” counsel asked that “a ‘special plea’ be entered;” the court’s docket sheet reflects appellant entered “a plea of not guilty due to double jeopardy.”
Counsel adduced testimony of the deputy district clerk regarding his “discovery” of the prior defective proceeding. On crossex-amination, the prosecutor elicited the following:
“Q: It is your understanding that the defendant was brought back from the penitentiary and confronted with a possibility of doing the plea over again since *435this Court had absolutely no jurisdiction to take the plea of guilty?12
A: Yes, sir.
Q: And that he refused to waive indictment in that case.
A: Yes, sir he did.
Q: And that is why we are here today, is that correct?
A: Yes, sir.
Q: Have you [district clerk] ever personally asked him this regarding the waiver of indictment or not?
A: Yes, sir, I have on numerous occasions.
Q: And he has made it clear to you that he does not want to waive indictment in Cause No. 302,911.
A: Yes, sir.”
Defense counsel also placed appellant on the stand. Appellant testified to having been through the September 21 plea hearing, and to having done everything he had agreed to do under the plea bargaining agreement, including waiving ten days for sentencing and waiving his right to appeal. He also testified he had served nine days in the Department of Corrections pursuant to the ten year sentence. On cross, the prosecutor elicited appellant’s agreement that he had judicially confessed to the aggravated robbery on September 21, and that confession was true. Appellant agreed with the prosecutor that he had never waived indictment, nor been indicted in Cause No. 302,-991. Appellant stated it was his understanding that he was returned from the penitentiary to Harris County “to sign a waiver.” He also agreed that, in the words of the prosecutor, he had refused to “re-plead the ease with this Court having jurisdiction for the same 10 years....”13 He acknowledged he had been indicted for the same conduct under a new cause number. The prosecutor inquired:
“Q: And it is your position that you want to go to trial in Cause No. 304,319 and that you do not want to plead guilty, is that right?
A: A plea of double jeopardy.”
The prosecutor finally asked appellant if he were aware that Cause No. 302,991 was no longer pending against him, that it had been dismissed. Appellant said he was not aware of such an action.
Finally, the transcription of court reporter’s notes of the events of November 14, 1979, reflects the trial conducted on the merits in Cause No. 304,319: appellant entered a plea of guilty.
No Showing Appellant Understood the Consequences
A very routine plea hearing is reflected— at least until the prosecutor requested permission to question appellant. The prosecutor’s focus was upon the aggravated facts of the offense, and a prior misdemeanor conviction for possession of marihuana, which the prosecutor repeatedly emphasized appellant had “never mentioned... in front of the Judge in September....”14 In conclusion the prosecutor argued,
*436“I would ask the Court just to consider the evidence that the Court did not previously have access to in September. Thank you.”
And consider it the trial court did, — immediately assessing appellant’s punishment at twelve years.
Even if the record demonstrated appellant withdrew his plea, attacked his conviction, insisted upon a trial or otherwise repudiated the original plea bargain, there is no evidence whatever responsive to the “crucial inquiry” cited by Ehl as the “key to disarming an allegation of vindictiveness,” of “whether the accused was aware of and knew the price of rejecting the bargain,”15 quoting Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 667, 54 L.Ed.2d 604 (1968).
In Conclusion
Faced with this record, we are bewildered by the assertion of the State Prosecuting Attorney that “the new trial was occasioned by appellant’s withdrawal from a negotiated guilty plea.” Yet it is not surprising that he nowhere points to specific conduct on the part of this appellant which constitutes the alleged “withdrawal from a negotiated guilty plea.”16
Quoting Frank v. Blackburn, 646 F.2d 873 (CA5 1980), the State Prosecuting Attorney observes the constituents of a plea bargain:
“Plea bargaining is a process of negotiation in which the prosecutor, trial judge or some other official in the criminal justice system offers the defendant certain concessions IN EXCHANGE FOR AN ADMISSION OF GUILT. -The concessions offered may relate to the offense charged, the sentence to be imposed, or a variety of other circumstances. The benefit offered by the defendant, however, is always the same: ENTRY OF A PLEA OF GUILTY.” [Footnotes deleted]
As far as this record shows, appellant did admit his guilt in open court and did enter a plea of guilty on both September 21, and November 14, 1979. He furthermore complied with every term of the original plea bargaining agreement reflected either in the papers filed or in oral recitations made during the hearing of Cause No. 302,991. The record is devoid of evidence that appellant agreed to waive indictment or the assistance of counsel in that cause. And though a late motion for new trial was filed, there is no evidence it was made with appellant’s consent or knowledge; indeed appellant’s intent may be gleaned from his personal waiver of all post conviction reme*437dies, including appeal.17 Stranger still is the fact that appellant was transferred to the Department of Corrections one day after the motion for new trial was filed and granted18 — under what judgment and sentence extant one wonders.
There is no evidence that appellant originally either agreed to waive indictment, counsel or any claim of double jeopardy which might arise as a result of the State’s negligence19 —yet clear as day, it was his refusal to do one or all of these things, to cooperate in getting the State’s house in order, which resulted in the trial court’s assessment of twelve years in Cause No. 304,319, at the urging of the prosecutor. At the very least, it is a duty of the prosecutor to insure the jurisdiction of the district court is somehow invoked when implementing a plea bargain so as to avoid repeated proceedings. But failing that, his insistence that the appellant take steps to correct his error constitutes an amendment to the original terms of the bargain.
We hold the State has failed to establish appellant rejected the original plea offer, because the record indicates the prosecutor amended the terms thereof and consequently, did not offer appellant the same deal.
This case does not even slightly resemble Ehl.20 It seems the only omission by the panel on original submission was a failure to develop the factual sequence in sufficient detail so as to demonstrate with clarity its eminently correct conclusion: Since the record does not establish that appellant: (1) successfully attacked his conviction; (2) rejected an offer by the State for the same terms and conditions as the original bargain; or (3) was aware of the price of rejecting the original offer, we have no choice but to remand the cause for reassessment of punishment in accord with North Carolina v. Pearce, supra.
The State’s motion for rehearing is overruled.
. Hereinafter cited as Ehl.
Presiding Judge Onion and Judge Odom, respectively, have a dissenting opinion. Since the former overlaps the latter, when we mention hereinafter the “dissent” or “dissenting opinion” the reference is to the dissenting opinion of our Presiding Judge.
. That since due process of law prohibits vindictiveness against a defendant who has successfully attacked a conviction, the reasons for a more severe sentence upon retrial must be based upon objective information about identifiable conduct on the part of the defendant occurring after the original sentencing, and must be spread affirmatively upon the record so that the constitutional legitimacy of the increased sentence may be fully reviewed by a higher court.
. The State Prosecuting Attorney is incorrect in asserting the record does not contain the transcription of this September 21 plea hearing on appellant’s plea of guilty. Thus, contrary to his position, this Court need not resort to any presumption of regularity regarding those proceedings.
. All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.
. See Article 1.15, V.A.C.C.P.
. The order recites that in Cause No. 302,911 appellant “[has] been TRIED, CONVICTED, and SENTENCED to the Texas Department of Corrections...”
. Apparently, by “paper work,” the deputy clerk meant the judgment and sentence; we say this because neither is contained in the record; the clerk’s “entire file” is certified as being before us.
. It is impossible to discern who signed this document, thus, it is less clear than intimated by the panel that “appellant filed a motion for new trial....,” and while in the average case, this would be safe to assume, it is a material issue under pronouncements of Ehl, on which the State has the burden of proof.
. This motion was ten days late; as the transcription of the plea hearing demonstrates, appellant had waived his right to file such a motion and sentence had already been pronounced.
. The dissent observes that the trial court could have, and “apparently ... did,” set appellant’s conviction aside on its own motion; inexplicably, the dissent then proceeds to apply to this case a legal rationale which denies relief to one because he has “successfully attacked his conviction.”
Contrary to the dissents’ suggestion that we “give no consideration to the fact that the court had no jurisdiction over the original proceedings,” we consider this fact heavily: the necessity of relitigating the cause was not due to any failure or affirmative effort on the part of this appellant; he did not “attack his conviction” successfully or otherwise.
.This notation like another document contained in the record is “signed” by the prosecutor with a depiction of an Indian tepee. Apparently a clever cryptogram for Ted Poe’s initials, the “tepee” found under the instruction supports the conclusion that the State sought appellant’s cooperation in some way to obviate a new trial proceeding (and perforce, the appointment of counsel). When appellant refused to so cooperate, starting the process over was imminent, so simultaneous with the appointment of counsel, “all recommendations by the State [were] off.” See post at 435 and n. 16.
. The “possibility” of doing something other than “doing the plea over again” pops up repeatedly throughout this record; [see, e.g., testimony of deputy district clerk, ante at 433]; yet the record is notably vague about the alternative course the State had in mind to correct the defect in — if not the proceeding itself — the records of the cause. But see n. 13, post.
. The clear inference from the above testimony of the deputy district clerk and appellant when viewed as a whole is that the “alternative” to “doing the plea over” envisioned by the State, was to merely have appellant execute a waiver of indictment at the request of the district clerk, and back date it to September 21, the date the original plea was entered. Under this plan, appellant would not need counsel and no new plea proceeding would be necessary. See also n. 16, post.
The dissent, however, apparently reads the prosecutor’s last question and appellant’s affirmative reply out of context to “show[ ] that after indictment the State again offered the appellant the same ten year plea bargain if he entered a guilty plea, and that this was rejected by the appellant.” But there is no evidence in the entire record to support such a reading; indeed, if the record contained such evidence, the Court would not be so sharply divided in this case.
.This prosecutor had negotiated the original plea with appellant and his counsel taken on September 21. In the record before us is a prerelease interview report dated September 20 *436which reflects under “prior convictions” that in 1973 appellant was charged with two counts of “P/M” — obviously, possession of marihuana.
We presume therefore that the prosecutor knew about and evaluated this prior misdemeanor conviction in coming to terms of his plea offer. In view of this, his attempt to fault appellant for not speaking up about this matter in the original hearing — and particularly when he was not asked — strikes us as the highest form of hindsight — if not vindictiveness.
. As was noted previously, appellant committed, was arrested for, confessed and pleaded guilty to, an aggravated robbery, all in the course of three days. No doubt his eagerness to “make a deal” did not occasion a discussion regarding the “price of rejecting the bargain.”
The dissent seems to assign significance to the fact “that at the time of the original plea bargain appellant and his counsel were aware of the 1973 conviction for possession of marihuana;” while we have no doubt appellant was aware of his own prior record, we do not see the relevance of the fact to our inquiry.
. It seems implicit in this that the State Prosecuting Attorney concedes that appellant was returned to Harris County solely for the purpose of executing a “nunc pro tunc” waiver of indictment so that the district clerk might “complete [his] paper work” and thereby “cover” the prosecutor’s oversight. A blank waiver of indictment form, dated September 21 (which, unlike all other papers in the file of Cause No. 302,911, bears no September 21 file mark of the clerk) supports this conclusion.
It is certainly manifest that the State’s asserted offer to appellant was open only during the time before counsel was appointed to represent him, since “all recommendations by the State [were] off” simultaneous with that appointment. See n. 11, ante, and accompanying text.
Further, it is clear that no new indictment was extant on which plea bargaining could begin anew when appellant arrived back in Harris County; that was not sought until appellant “refused to waive indictment in [the original] cause [on numerous occasions].” See testimony of deputy district clerk ante, at 434^35.
. Surely if the decision to appeal is personal to the criminal convict, so too is the decision to move for a new trial.
. The record all but shouts the obvious: The motion for new trial was filed at the instance of the prosecutor because of problems with completion of the “paper work,” clearly due to a failure of the State. It is poignant that — unlike the State Prosecuting Attorney — the Harris County District Attorney’s Office has never argued the filing of this motion for new trial or any other event reflected, constituted appellant's repudiation of the bargain.
. Though far from clear, one thrust of the dissenting opinion seems to be that after the conviction was discovered to be void, appellant’s assertion of a Fifth Amendment claim justified an increased punishment. Obviously, such a position cannot be squared with North Carolina v. Pearce, supra.
.The dissent charges that we are “overly obsessed in pointing out all examples of ineptness, both real and imagined, occurring in the court below.” But our effort to determine what happened in this case from a less than model record has been made by scrutinizing each and every document, entry, notation and page contained in the entire record before us; in putting each piece together, an integrated whole has emerged with clarity. If we are to be faulted for drawing our conclusions from all the facts and circumstances shown, then so be it. But even the highest degree of selective consideration of isolated facts out of context contained in this record will not support the result urged by the State Prosecuting Attorney — as the dissenting opinion well illustrates.