The trial court improperly declared a mistrial sua sponte after the jury was sworn and impaneled, following the hospitalization of one juror and the discovery that another would be unavailable later in the week. After the State filed a petition for review to the Court of Criminal Appeals, the court of appeals withdrew its original opinion and judgment and replaced them with this decision to respond to a new argument in that petition. In response to the State's argument that Ballew v. Georgia requires six jurors to hear a misdemeanor case, the court ruled that Ballew does not apply because Texas law conforms to the federal constitutional requirement that misdemeanor juries be composed of six people. Nothing in Ballew suggests that a defendant may not knowingly waive his right to a jury of six people if he makes a written waiver in person, in open court, and with the consent and approval of the court and the prosecuting attorney, as happened here. This defendant asked the court to proceed to trial with fewer than six, where Ballew requested that the court not proceed. Therefore, the trial court erred in granting a mistrial for manifest necessity, and double jeopardy prevents any further prosecution of this defendant for the alleged offense of driving while intoxicated. Garza v. State01-07-00740-CR. -