OPINION

delivered the opinion of the Court,

Appellee was charged with the offense of indecency with a child. He pled not guilty and a jury was empaneled and sworn. During her opening statement to the jury, the prosecutor made the following assertions:

The evidence will be that early on in the investigation, Detective Raleeh, before any charges were filed, while the case was still being investigated, called [appellee] and said, I have- — there are some charges, a complaint has been filed against you, and I’m interested in talking to you about it.

And [appellee] said that he wasn’t interested in talking about it and to call his attorney, Craig Jett, and gave him the phone number.

Appellee objected to the statements on the grounds that they were improper comments on appellee’s invocation of his right to counsel and his right to remain silent. The trial court sustained appellee’s objections and granted his motion for a mistrial. The State attempted to retry appellee pursuant to the same indictment. Appellee filed a pretrial application for writ of habe-as corpus, claiming double jeopardy prevented the State from retrying him. The trial court held a hearing on the application and ultimately granted relief pursuant to Bander v. State, 921 S.W.2d 696 (Tex.Crim.App. 1996) (“Bander /”), dismissing the indictment with prejudice.

The State appealed, arguing the trial court erred in barring retrial based on double jeopardy. The Court of Appeals affirmed. State v. Lee, 971 S.W.2d 553 (Tex.App.- — Dallas 1997). The State argues Bander I was not correctly applied by the Court of Appeals.1 The State main*923tains that the Court of Appeals applied the ■wrong law in determining whether the prosecutor’s comments were error, that the prosecutor’s statements were not error, and even if they were error, any error could have been cured by an instruction to disregard, and finally, that the statements were not made deliberately or recklessly.

In Bander I, we held that ... a successive prosecution is jeopardy barred [under the Texas Constitution] after declaration of a mistrial at the defendant’s request, not only when the objectionable conduct of the prosecutor was intended to induce a motion for mistrial[, the Fifth Amendment standard under Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982),] but also when the prosecutor was aware but consciously disregarded the risk that an objectionable event for which he was responsible would require a mistrial at the defendant’s request.

Bander, 921 S.W.2d at 699. We subsequently clarified that the critical questions to be addressed in this context are:

... on the one hand, whether the appellant’s motion for mistrial was a choice he made in response to ordinary reversible error in order to avoid conviction, appeal, reversal, and retrial. Or, on the other hand, was he required to move for mistrial because the prosecutor deliberately or recklessly crossed “the line between legitimate adversarial gamesmanship and manifestly improper methods” ... that rendered trial before the jury unfair to such a degree” that no judicial admonishment could have cured it?

Ex parte Bander, 974 S.W.2d 729, 732 (Tex.Crim.App. 1998) (“Bander II ”).

The Court of Appeals held the prosecutor’s statements amounted to error:

[T]he prosecutor’s statement was clearly improper because it constituted a comment on appellee’s invocation on his right to counsel. See Hardie v. State, 807 S.W.2d 319, 322 (Tex.Crim.App. 1991) (holding evidence of accused’s invocation of right to counsel inadmissible as evidence of guilt); Rezac v. State, 722 S.W.2d 32, 33 (Tex.App. — Dallas 1986) (holding that invocation of constitutional right to counsel may not be relied on as evidence of guilt), rev’d on other grounds, 782 S.W.2d 869 (Tex.Crim.App. 1990); see also Tex.Code CRiM. PROC. Ann. art. 38.38 (Vernon Pamph. 1998) (noting that prosecutor in criminal case may not comment on fact that defendant has retained attorney).

Lee, 971 S.W.2d at 556. The court further concluded the error was so prejudicial it could not have been cured by an instruction to disregard. Id. Finally, the court upheld the trial court’s conclusion that the prosecutor “was aware [of] but consciously disregarded the risk that an objectionable event for which [she] was responsible would require [the] mistrial.” Id.

While the Court of Appeals held that the prosecutor’s statement was an improper comment on appellee’s invocation of his right to counsel, a closer look reveals that it was not an effort by appellee to invoke his right to counsel:

... [appellee] said that he wasn’t interested in talking about it and to call his attorney, Craig Jett, and gave him the phone number.

Appellee was not asking for his attorney; rather, appellee was expressing his desire not to talk to Raleeh and dismissed Raleeh by referring him to his attorney. The statement is most accurately viewed as an *924attempt by appellee to convey his desire to remain silent,2

The question under Bauder II, then, is whether, on the one hand, admission, as substantive evidence of guilt,3 of a defendant’s prearrest and pre-Miranda silence, in the face of questioning by police during the investigation of a crime in which the defendant is a suspect, is “ordinary reversible error.” Or, on the other hand, in commenting on such evidence, did “the prosecutor deliberately or recklessly cross[ ] ‘the line between legitimate adversarial gamesmanship and manifestly improper methods’ ... that rendered trial before the jury unfair to such a degree that no judicial admonishment could have cured it?” See Bauder, 974 S.W.2d at 732. The Court of Appeals held the prosecutor acted recklessly in making the comments.4 But the Court of Appeals failed to take into account the appropriate substantive law when assessing the prosecutor’s mental state. The question of a defendant’s prearrest, pre-Miranda silence is one of first impression for this Court and one on which the federal courts of appeals are split.5 In view of this state of the law, the *925prosecutor’s actions could not have been intentional or reckless.

We have explained what is meant by intentional and reckless conduct in this context. A prosecutor acts intentionally when:

... believing that he cannot obtain a conviction under the circumstances with which he is confronted, and given the admissible evidence then at his disposal, deliberately offers objectionable evidence which he believes will materially improve his chances of obtaining a conviction, and the law considers the prejudicial effect of such objectionable evidence to be incurable even by a firm judicial admonishment to the jury[,]

or when:

... the objectionable conduct of the prosecutor was intended to induce a motion for mistrial....

Bauder, 921 S.W.2d at 699. A prosecutor acts recklessly when:

... the prosecutor was aware but consciously disregarded the risk that an objectionable event for which he was responsible would require a mistrial at the defendant’s request!,]

[when] ... he is aware [his conduct] is reasonably certain to result in a mistrial!,]

[or when he is] ... aware that his conduct creates a risk that a mistrial is reasonably certain to occur, [but] consciously disregards that risk ...

Id. Thus, in order for a prosecutor’s offer of evidence to be viewed as an intentional or reckless act within this context, he must have either (1) “believe[d the evidence would] materially improve his chances of obtaining a conviction, and the law considers the prejudicial effect of such objectionable evidence to be incurable even by a firm judicial admonishment to the jury[;]” or (2) been “aware but consciously disregarded the risk that an objectionable event for which he was responsible would require a mistrial at the defendant’s request” or have been aware but consciously disregarded the risk that a mistrial would be “reasonably certain” to occur as a result of his conduct.

The prosecutor in this case believed that because appellee was not under custodial interrogation, the evidence was admissible.6 This was a legitimate view of the law as interpreted by some federal courts, including the Fifth Circuit. Oplinger, 150 F.3d at 1067 (“[p]rior to custody or indictment here, the government made no effort to compel [the defendant] to speak [and therefore] the constitutional privilege against compelled self-incrimination did not come into play”); Zanabria, 74 F.3d at 593 (holding prosecutor’s comment on defendant’s prearrest silence did not violate 5 th amendment); Rivera, 944 F.2d at 1568 (“government may comment on a defendant’s silence if it occurred prior to the túne that he is arrested and given his Miranda warnings”). Given that the law on this constitutional issue had not been addressed by the United States Supreme Court or by this *926Court,7 and in view of the split among the federal courts of appeals, the prosecutor did not disregard a “risk” that a mistrial would be “required” or even that a mistrial would be “reasonably certain” to occur.8 Neither could the prosecutor have intended to induce a mistrial, given the fact that such evidence has not been held inadmissible by this Court, and has indeed been held admissible by the Fifth Circuit and some of the other federal courts.

Because the prosecutor’s statement concerning appellee’s prearrest, preMiranda silence was not clearly erroneous, it cannot be said that there was any intent to induce a mistrial or reckless disregard that a mistrial would be reasonably certain to occur.9 The Court of Appeals erred in holding a retrial is jeopardy barred.10 The judgment of the Court of Appeals is reversed and the trial court’s order dismissing the indictment in this cause is set aside.

delivered a concurring opinion, in which McCORMICK, P.J. and KELLER, J., join.

Today the majority further muddles Texas double jeopardy law while clinging to an ill-conceived, historically unsound, imprecise precedent. Rather than abandoning Bauder v. State,1 the majority turns a blind eye to its holding and says that it does not apply to these facts. I agree that Lee should answer to the indictment, and that double jeopardy does not prohibit his retrial. I just do not see how the majority can justify its conclusion under the language of Bauder.

Regardless of whether Lee was invoking his right to remain silent or invoking his right to counsel, he was without question referring the police to his lawyer, and the prosecutor mentioned this fact to the jury. The prosecutor’s argument violated Art. 38.38. That statute provides that “[e]vi-dence that a person has contacted or retained an attorney is not admissible on the issue of whether the person committed a criminal offense” and a prosecutor may not “comment on the fact that the defendant has contacted or retained an attorney in the case.” The trial court recognized this statutory violation as one of its reasons for granting the mistrial; it found that the prosecutor’s comment “also violated Art. 38.38 of the Texas Code of Criminal Procedure.” The prosecutor’s violation of this statute was “an objectionable event for which [the prosecutor] was responsible”2 under Bauder. The trial court’s granting of the mistrial on these grounds directly implicates our holding in Bauder.

In a footnote, the majority attempts to distinguish Bauder from this case by saying that Article 38.38 is merely “evidentia-ry in nature ... curable by an instruction to disregard.” But the majority overlooks the fact that Bauder also involved the violation of an evidentiary rule (Rule 404, Texas Rules of Evidence). The only difference is that in Lee we have a rule passed by the legislature, while Bauder dealt with a court-made rule. Is the majority saying that rules enacted by the legislature are not as important as those we promulgate? Apparently so.

What Bauder Held

In Bauder v. State, we held for the first time that a prosecutor need not intend to goad defense counsel into moving for a mistrial for double jeopardy to bar a retrial. We said that retrial will also be prohibited “when the prosecutor was aware but consciously disregarded the risk that an objectionable event for which he was responsible would require a mistrial at the defendant’s request.”3 So jeopardy consequences under Bauder attach to reckless or grossly negligent prosecutorial conduct as well as intentional behavior.

Stare Decisis

I realize that we should not overrule precedent lightly.4 But Bauder itself did just that. Our decision in Bauder “lightly overruled” precedent in two ways:

• For almost seventy-five years we had interpreted the Texas Constitution to have the same meaning as the United States Constitution. We brushed aside over seven decades of precedent.5

• For fourteen years we embraced the plurality’s holding in Oregon v. Kennedy,6 which held that unless the prosecutor intended to goad the defendant into seeking a mistrial, *928retrial was not barred.7 We swept away the intent requirement.

In determining whether the Texas Constitution accords more protection than the Constitution of the United States, five factors are relevant: the constitutional text; the Framers' intent; the history and application of the constitutional provision; comparable jurisprudence from other states; and the practical policy considerations behind the constitutional provision. In light of those considerations, Bander ⅛ rationale is flawed.

The Constitutional Text

The 1845, 1861, and 1866 Texas Constitutions provided that “[n]o person, for the same offense, shall be twice put in jeopardy of life or limb, 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.” In the 1869 Texas Constitution, the words “or limb” were omitted. In the 1876 version, the words “or liberty” were inserted following the word “life.” The Fifth Amendment of the United States Constitution states “... nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb ...” Neither the Texas nor the United States Constitutional texts specifically addressed the consequences of mistrials.

The Framers’ Intent

When we look at legislative actions around the time our state constitutions were adopted, we see that the 1856 Code of Criminal Procedure provided:

Art. 18. No person for the same of-fence [sic ] can be twice put in jeopardy of life or limb. This is intended to mean that no person can be subjected to a second prosecution for the same offense, after having been once prosecuted in a Court of competent jurisdiction and duly convicted.

Art. 19. The foregoing article will exempt no person from a second trial, who has been convicted on an illegal instrument or information, and the judgment thereupon arrested, nor where a new trial has been granted to the defendant, nor where a jury has been discharged without rendering a verdict, nor for any case other than that of a legal conviction.

Art. 20. By the provisions of the Constitution, an acquittal of the defendant exempts him from a second trial, or a second prosecution for the same offense, however irregular the proceedings may have been; but if the defendant shall have been acquitted upon trial, in a Court having no jurisdiction of the offense, he may, nevertheless, be prosecuted again in a Court having jurisdiction.

The provisions of Section 19 were carried forward as Section 20 of the 1879 Code of Criminal Procedure just three years after the present state constitution’s adoption.

So our state constitution was initially interpreted to prohibit second trials only after legal conviction or acquittal. And there is no legal or historical basis for the contention that the Texas Constitution provides greater double jeopardy protection than the United States Constitution. Its wording certainly does not apply double jeopardy consequences where a jury has been discharged without reaching a verdict. And indeed, as we shall see, the idea of their being applied this way did not appear in constitutional jurisprudence until well into the next century.

Application of the Constitutional Provision

In this century, our nation’s courts have expanded double jeopardy protection. Classic double jeopardy protection prohibits a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and *929multiple punishments for the same offense.8 In recent years, the word “acquittal” has been expanded to include cases where a conviction is reversed because the evidence at trial was insufficient to convict as a matter of law.9 Also, if a verdict at trial necessarily includes the determination of an ultimate fact issue in the defendant’s favor, and if proof of that issue is necessary for the prosecution to convict the defendant in a subsequent proceeding, then the prosecution is estopped from re-litigating that issue, and the defendant is acquitted of that offense.10

The kind of double jeopardy protection involved in Bander and in this case is the “mistrial species.” The Supreme Court of the United States described it as “protect[ing] a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendant to substantial burdens imposed by multiple prosecutions. It bars retrials where ‘bad faith conduct by judge or prosecutor’ threatens the ‘[hjarassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict’ the defendant.”11 When the State believes that an acquittal is likely and it attempts to avoid the acquittal by goading the defendant into moving for a mistrial, thereby prematurely terminating the proceeding, it is an effort to put the defendant twice in jeopardy. For a double jeopardy violation to occur, the trial court must grant the mistrial. And the court must grant it as a result of the prosecution’s acting with intent to terminate the proceedings in an effort to avoid an acquittal.

Comparable Jurisprudence From Other States

The overwhelming majority of our sister states follow Oregon v. Kennedy in interpreting their state constitutions.12 Some *930states have not addressed the issue directly, but their caselaw indicates that they •will probably follow Kennedy when the issue arises.13

Of the five states other than Texas that have declined to follow Kennedy, two have a stricter test than Bander. In New Mexico, retrial is barred under the state constitution if the official “either intends to provoke a mistrial or acts in willful disregard of the resulting mistrial”14 The court explained that “willful disregard” is greater than recklessness, negligence, or indifference.15 Instead, it connotes a “conscious and purposeful decision to dismiss any concern.”16 Pennsylvania’s constitution prohibits retrial if “the conduct of the prosecutor is intentionally undertaken to prejudice the defendant to the point of the denial of a fair trial.” 17 Both these states require, at a minimum, some intent on the part of the prosecutor with respect to causing a mistrial. Only Arizona, Hawaii, and Oregon have double jeopardy standards as broad as those set out in Ban-der.18 So our decision in Bander is contrary to the great weight of authority around the United States.

Of course, Texas is a sovereign state, and we should not cringe from being unique. Sometimes being right requires us to stand alone. Nevertheless, we might wonder if everyone is out of step but us when 88% to 92% of our sister states (depending on which numbers you use) disagree.

Practical Policy Considerations

It should be clear that the “mistrial” species of double jeopardy logically extended the protection from actual acquittal to cases where acquittal was probable. It was meant to deter prosecutorial behavior intended to sabotage a trial going badly for the State. To extend it to cases where the prosecutor has no such intent and where the probable outcome of the trial is unknown is utterly absurd. But that is what Bander ⅛ language does.

Conclusion

To avoid a ridiculous result, the majority says, in effect, “We really didn’t say what we said in Bander.” The fact that we have had to clarify or disavow its language twice — in “Bander II"19 and again today — demonstrates how imprecise and difficult it is to apply We should specifically overrule it and return to the standard set *931forth by the Supreme Court plurality in Oregon v. Kennedy. In doing so, we would return to the mainstream of our nation’s jurisprudence. The Texas Constitution by its terms and by its history provides the identical protection against double jeopardy as does the United States Constitution. We should say so. Since we do not, I concur only in the result reached by the majority.