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Ex Parte David Garza

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Price, J., delivered the opinion of the court in which Meyers, Womack, Johnson, Keasler and Hervey, JJ., joined. Keller, P.J., and Cochran, J., dissented.

OPINION

After the jury was empaneled and sworn in this misdemeanor prosecution for driving while intoxicated, but before trial commenced, one of the jurors became at least temporarily indisposed for health reasons and the trial was continued for a few days. Ultimately, the trial court declared a mistrial over the appellant’s objection. When the case was reset for trial, the appellant filed a pre-trial application for writ of habeas corpus arguing that, because a manifest necessity for the mistrial was lacking, his re-prosecution violated double jeopardy. The convicting court denied relief, but the court of appeals reversed and remanded the cause to the convicting court, presumably so that it might dismiss the information against the appellant. We granted the State’s petition for discretionary review to consider, inter alia, whether the court of appeals erred to hold that the trial court should not have granted the mistrial without first exploring the option of proceeding to trial with only five jurors, the appellant having expressed at least a tentative willingness to waive his constitutional right to a full complement of six. We will affirm.

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