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Click here for the full text of this decision FACTS:Toward the end of Nathaniel Alexander’s trial for felony retaliation, a juror contacted the trial court and said she would not be present on the next day of trial, March 31, because she was going out of town to attend a university event for her daughter. Though the state said it would proceed with 11 jurors, Alexander said he would not. The trial court sua sponte declared a mistrial and ordered the parties to pick a new jury. In explaining its ruling, the trial court said that a whole day would be lost if it continued the case until the juror got back; dismissing the jury as a whole would result in a loss of only a half-day. The trial court also mentioned that there was no guarantee the juror would be back the following day, but a writ of attachment against the juror could result in bias by that juror. The trial court felt its only alternative was to wait until the next day or later, and that it was less harmful to Alexander to start again on March 31 with a new trial. Alexander filed for a writ of habeas corpus and a dismissal of the charges. The trial court denied the habeas corpus petition. Alexander then filed an interlocutory appeal based on double jeopardy. HOLDING:Reversed and remanded. The court confirms that an exception to the prohibition of subsequent trials on the same charge is when a mistrial is mandated by manifest necessity. The issue in this case, then, is whether the mistrial called sua sponte by the trial court was warranted as manifest necessity. Manifest necessity exists in three instances: 1. when it would be impossible to arrive at a fair verdict; 2. when it is impossible to continue with trial; or 3. when the verdict would be automatically reversed on appeal because of trial error. The court looks to Ex Parte Little, 887 S.W.2d 62 (Tex.Crim.App. 1994), for guidance. In that case, the trial judge did not consider less drastic alternatives before declaring a mistrial, and the high court remanded the case to the trial court to enter an order discharging the defendant and barring reprosecution for the same offense. Here, the trial court considered less drastic alternatives, but, as in Little, there were no “very extraordinary and striking circumstances” that necessitated a mistrial. The circumstances did not meet the standard of manifest necessity. A delay of a half-day or a day, without more, does not meet that standard. As in Little, a continuance was the “most available less drastic alternative” to a mistrial. The trial court erred in sua sponte declaring a mistrial in the absence of manifest necessity, the court rules. As double jeopardy error is a constitutional error, it was not harmless. Consequently, the court remands to the trial court with instructions to enter an order discharging Alexander and barring reprosecution for the same offense. OPINION:Per curiam.

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