The trial judge declared a mistrial for reasons undisclosed on the record. Under the applicable statutes, there is no conceivable reason he could have had that would have risen to the level of "manifest necessity." The State asks us to order an abatement to discover the judge's reasons for his ruling. We decline to do so since it would be a futile act.

Samuel Hill was charged with capital murder. Voir dire began on a Tuesday morning and concluded the following morning. The jury was sworn in at noon on Wednesday and told to return the next day for the trial to begin. On Wednesday afternoon, one of the jurors called the court "hysterical," saying "she couldn't continue." The following morning, the juror presented the court with two notes, one from her doctor and one from herself. In her note, she informed the court that health problems would prevent her from performing her duties as a juror. She explained that she suffered from "debilitating panic attacks when placed under stressful situations" and should not "participate in jury decision-making due to the emotional stress." The note from her physician stated that she suffered from "generalized anxiety disorder and possible panic disorder with stressful situations."

At a brief hearing, the defense admitted into evidence the two notes, plus the juror's blood pressure card and jury questionnaire. Defense counsel argued that the juror had not informed the court of any problem during the two days of jury selection. Then the judge stated the following: "All right. There's been lengthy discussions in chambers about this. The Court, having weighed all the options, is now going to, on Court's own motion, declare a mistrial." The State and Hill both objected, and the judge overruled the objections. The defense requested that another panel be summoned immediately, and the judge said they would get another panel the following morning.

That morning, a Friday, before viewing the panel, Hill stated that he would be ready to proceed with trial "subject to a motion to dismiss on the grounds of a double jeopardy claim that I anticipate will be filed prior to Monday when we begin jury selection." He reiterated that "if the Court - if the Court will allow me to file that motion on Monday and deem it timely filed, then we can proceed with that portion of it, the jury selection." He further stated:

Likewise, if you'll allow me to file that motion to dismiss on the double jeopardy claim. As the Court will recall, yesterday over the objection of the State and the defense, the Court declared a mistrial as to what the Court perceived there was a problem with a juror, and as I've done a little research in that matter, it's necessary for me to file a motion to dismiss this case as a result of that. Having only a matter of hours since that mistrial was declared, I have not prepared that motion yet. I will have it ready by Monday.

The trial judge responded that Hill would "be allowed to file it Monday" and it would be "deemed timely filed."

On Monday morning, before beginning voir dire, the court recognized that "the defense has a motion." Hill then stated, "Judge, this morning, we have filed, as I indicated on Friday we would, a Defendant's motion to dismiss based on double jeopardy. We don't need to argue the motion. The motion speaks for itself."

Hill's motion asserted that the jury was selected and sworn on November 10^th, and that on November 11^th the judge declared a mistrial "Sua Sponte over the objection of both the State and the Defendant. The Defendant alleges that there was no Manifest Necessity that would have allowed the Court to declare the Mistrial Sua Sponte." The judge denied the motion. Hill asked the judge to enter "findings of fact and conclusions of law with regard to the mistrial that you declared last Thursday," and the judge responded, "Well, all right." No such findings are in the appellate record.

The second voir dire then began, with the second jury being sworn in that afternoon. Trial began the following day. Hill was convicted of capital murder and sentenced to life in prison.

On appeal, Hill argued that the second prosecution violated double jeopardy. The Court of Appeals agreed and reversed the conviction. ⁽¹⁾ The court held that the record did not reflect that the judge had considered less drastic alternatives to a mistrial, such as proceeding to trial with eleven jurors. ⁽²⁾ While the State contended that the judge considered and rejected that option during the in-chambers conference, the appellate court found nothing in the record to support that contention. ⁽³⁾

The Court of Appeals also rejected the State's argument that, in lieu of reversing the conviction, the court should abate the proceedings and permit a hearing in the trial court to supplement the record with evidence of what occurred during the in-chambers conference. The appellate court concluded that it lacked authority to order an abatement because the trial court was not required by law to make findings of fact on the issue. ⁽⁴⁾

We granted the State's petition for discretionary review on six grounds. The first four grounds assert that an abatement was permissible and preferable and that we should order one now. The last two grounds contend that Hill failed to meet his burden of proving that the judge failed to consider less drastic alternatives to a mistrial and, therefore, the subsequent prosecution was not barred by double jeopardy. We address the latter two grounds first.

Since the dissent contends that Hill's claim fails due to his failure to present supporting evidence at trial, we first address whether he has preserved his double jeopardy claim for our review. The dissent relies on Anderson v. State ⁽⁵⁾ and Zimmerman v. State ⁽⁶⁾ for the proposition that Hill was required to prove his double jeopardy claim by a "preponderance of the evidence." ⁽⁷⁾ Because he offered no evidence in support of his motion, the dissent argues, Hill's claim "fails as a matter of law." ⁽⁸⁾

We disagree. In both of those cases, the defendant presented considerable evidence in support of his double jeopardy claim; there was no issue about whether he had presented enough evidence to justify a review of his claim on appeal. Much more relevant to our case is State v. Torres. ⁽⁹⁾ In Torres, the defendant filed a motion arguing that his trial was barred by double jeopardy. The judge ruled on the motion after discussing the events of the previous trial with the prosecutor and defense counsel. On appeal, the State argued that the defendant's double jeopardy claim had to fail because he did not introduce any evidence to support it. We disagreed. We noted that while the defendant did not introduce evidence on the motion, "the State did not object to the format of the hearing or the manner in which the Court made its findings. In fact, the State readily participated in the proceedings." ⁽¹⁰⁾ Moreover, we concluded that "[w]here a plea of jeopardy is before the same court and judge," the "requirements concerning the plea are relaxed." ⁽¹¹⁾

We explained the rationale behind these lax requirements some twenty years before Torres in Shaffer v. State. ⁽¹²⁾ There, we said that "[t]he requirement that the defendant present evidence in support of his allegation of former jeopardy serves a legitimate state interest" because "[t]he trial court has no way of knowing that the allegations in the plea are true." ⁽¹³⁾ But, we added, "the procedural requirements which must be followed are not arid rituals of meaningless form." ⁽¹⁴⁾ Instead, "former jeopardy need not be specially pled in those instances where the trial court either knows or should know of the former proceeding, such as in those cases where the former jeopardy arose in the same case." ⁽¹⁵⁾ So, we concluded, "the rule does not apply in those circumstances where it is unnecessary, or where its enforcement would serve no purpose." ⁽¹⁶⁾

This case, like Torres, presents a situation in which requiring a defendant to present evidence in support of his double jeopardy claim would exalt form over substance. Here, the plea was not only before the same court and judge - it was made just a few days after the first trial ended in a mistrial. Requiring Hill to have presented evidence to the trial judge would "serve no purpose" ⁽¹⁷⁾ because here the judge knew of the former proceeding. Indeed, here, he knew of it well, as indicated by his own admission that there had been "lengthy discussions in chambers" about it.

Furthermore, Hill did make clear to the trial judge the substance of his complaint: that the judge declared a mistrial sua sponte over the objections of the parties and that no manifest necessity existed for the mistrial. There was nothing additional which Hill needed to present to the judge to make his claim clear. Appellate Rule 33.1 states that error is preserved for appellate review if the complaint "[i]s made to the trial court by a timely request, objection, or motion that . . . state[s] the grounds for the ruling that the complaining party [seeks] from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds [are] apparent from the context." ⁽¹⁸⁾ Hill's arguments to the judge as well as his written motion to dismiss satisfied Rule 33.1 because he stated the grounds for his ruling with sufficient specificity for the trial court to be aware of his complaint. Finally, we note that, as in Torres, the State did not object to the format of the hearing. Instead, the State readily participated in the proceedings.

We conclude that Hill adequately preserved his double jeopardy claim for our review. We therefore proceed to a discussion of the merits.

The Fifth Amendment prohibits the State from putting a defendant in jeopardy twice for the same offense. ⁽¹⁹⁾ Jeopardy attaches in a jury trial when the jury is empaneled and sworn. ⁽²⁰⁾ But the double jeopardy clause does not mean that every time a defendant is put to trial he is entitled to go free if the trial ends in a mistrial. If the mistrial was with the defendant's consent or based on "manifest necessity," a re-trial is not jeopardy barred. ⁽²¹⁾

Although the Supreme Court has not set forth precise circumstances in which manifest necessity exists, a trial judge's discretion to declare a mistrial based on manifest necessity is limited to "very extraordinary and striking circumstances." ⁽²²⁾ Manifest necessity exists when the circumstances render it impossible to arrive at a fair verdict, when it is impossible to continue with trial, or when the verdict would be automatically reversed on appeal because of trial error. ⁽²³⁾

The judge is required to consider and rule out "less drastic alternatives" before granting a mistrial. ⁽²⁴⁾ The judge must review the alternatives and choose the one which best preserves the defendant's "right to have his trial completed before a particular tribunal." ⁽²⁵⁾ The judge need not expressly state his reasons in the record as long as the basis for his ruling is adequately disclosed by the record. ⁽²⁶⁾ When a trial judge grants a mistrial despite the availability of a less drastic alternative, there is no manifest necessity and he abuses his discretion. ⁽²⁷⁾

The initial burden of proving a double jeopardy violation is on the defendant. ⁽²⁸⁾ He meets that burden by proving that he was tried for the same offense after a mistrial. The burden then shifts to the State to prove manifest necessity for the mistrial. ⁽²⁹⁾

In this case, the State cannot satisfy its burden of proving manifest necessity for the mistrial because the record does not reflect that the trial court considered less drastic alternatives. ⁽³⁰⁾ The Court of Appeals was correct in concluding that this record does not demonstrate manifest necessity for a mistrial.

The State argues that it could satisfy its burden of proof if we abated this case and allowed it to establish what occurred during the in-chambers conference. The State contends that this conference reflects that the judge granted the mistrial because the defense objected to proceeding to trial with eleven jurors, but the defense would not request a mistrial. There is nothing in the record to support the State's claim. Although the State relies on an affidavit attached to its motion to abate, that affidavit is not part of the appellate record and may not be considered. ⁽³¹⁾

To show manifest necessity for the mistrial, the State would have to show that there was no less drastic alternative available. In order to determine whether an abatement is a reasonable remedy to allow the State to meet its burden of proof, we must first determine whether proceeding to trial with eleven jurors was an available alternative in this case. We look to Art. 36.29(a) of the Code of Criminal Procedure and Government Code § 62.201, as well as our opinions in Ex parte Fierro, ⁽³²⁾ Hatch v. State, ⁽³³⁾ and Carrillo v. State. ⁽³⁴⁾

Article 36.29(a) states the general rule that "[n]ot less than twelve jurors can render and return a verdict in a felony case." It then sets forth an exception: "however, when pending the trial of any felony case, one juror may die or be disabled from sitting at any time before the charge of the court is read to the jury, the remainder of the jury shall have the power to render the verdict." Government Code § 62.201 provides another exception: "The jury in a district court is composed of 12 persons, except that the parties may agree to try a particular case with fewer than 12 jurors." So our laws provide two instances in which a trial can proceed with eleven jurors: (1) when the parties consent under § 62.201, and (2) regardless of the parties' consent, when a juror dies or becomes disabled under Art. 36.29(a). ⁽³⁵⁾

We discussed the interplay of these two statutes in Hatch. We had previously held in Ex parte Hernandez ⁽³⁶⁾ that a defendant could not waive the requirement of a 12-member jury. We overruled that decision in Hatch, concluding that based on Code of Criminal Procedure Art. 1.15 and Government Code § 62.201, a jury can proceed with eleven jurors if the defendant consents. Additionally, in Ex parte Fierro, the judge declared a mistrial. There was nothing in the record to demonstrate that the judge considered less drastic alternatives, one of which would have been "to determine if the parties would be willing to proceed with fewer than twelve jurors under Tex. Govt. Code, § 62.201."

Both Hatch and Fierro imply that a trial cannot proceed with eleven jurors unless the defendant consents. But significantly, neither of these cases involved a disabled juror. In Hatch, one of the jurors was not a United States citizen. In Fierro, one of the jurors was erroneously excused for cause because she was the defendant's cousin. Since she was not related to the defendant within the third degree of consanguinity, the trial judge erred in excusing her. In both cases, since the juror was not disabled, the only way the court could proceed with eleven jurors was under § 62.201, which requires the parties' consent.

This case is different. Here, the juror was disabled. A juror is disabled if she has a "physical illness, mental condition, or emotional state" which hinders her ability to perform her duties as a juror. ⁽³⁷⁾ This juror was unable to perform her duties due to "debilitating panic attacks." That brings this case within the ambit of Art. 36.29, which does not require the parties' consent. On the contrary, Art. 36.29 requires that the trial proceed with eleven jurors if one juror dies or becomes disabled from sitting. The statute states that if this occurs, "the remainder of the jury shall have the power to render the verdict." There is no need to obtain anyone's consent in this instance.

We essentially said this in Carrillo, although we did not mention Art. 2191 of the Civil Statutes, which was § 62.201's predecessor. Nevertheless, we stated that the language of Art. 36.29 "and the cases applying it make it clear that the Legislature's intent was to limit the Article's application to those cases where the juror was physically or mentally impaired in some way...."

Manifest necessity exists when the circumstances render it impossible to arrive at a fair verdict, when it is impossible to continue with trial, or when the verdict would be automatically reversed on appeal because of trial error. ⁽³⁸⁾ In this case, proceeding to trial with eleven jurors would not have made it impossible to arrive at a fair verdict or to continue with trial because Art. 36.29(a) required it. Likewise, it would not have presented automatic reversible error on appeal because the procedure is not just authorized but compelled by the statute.

We must reject the State's request for an abatement because, since the juror was disabled, Hill's consent was not necessary to proceed to trial. Even if we granted the State's request and abated this case for a hearing in the trial court, there is nothing that the State could possibly establish at that hearing which would demonstrate manifest necessity. Regardless of what happened in that in-chambers conference, there was no manifest necessity for this mistrial. Under Art. 36.29(a), there couldn't be. The judge abused his discretion in granting the mistrial, and the subsequent prosecution was barred by double jeopardy.

We conclude that proceeding to trial with eleven jurors was not just an available alternative in this case. It was a mandatory alternative under our constitutional, statutory, and case law. Regardless of Hill's consent, the judge was required to proceed to trial with eleven jurors. As a result, there could not be manifest necessity for a mistrial under these facts. Therefore, we need not decide whether abatement is permissible, because even if it is, it would not be a useful tool in this case. The law does not require a futile act. ⁽³⁹⁾ We dismiss grounds one through four of the State's petition, overrule grounds five and six, and affirm the judgment of the court of appeals.

DATE DELIVERED: November 6, 2002

PUBLISH

1. Hill v. State, No. 02-99-00527-CR (Tex. App. - Fort Worth, opinion delivered May 17, 2001) (not designated for publication).

2. Id., slip op. at 8-9.

3. Id.

4. Id., slip op. at 9-10.

5. 635 S.W.2d 722, 725-26 (Tex. Crim. App. 1982).

6. 750 S.W.2d 194, 209 (Tex. Crim. App. 1988).

7. Dissenting opinion, slip op. at 4.

8. Id.

9. 805 S.W.2d 418 (Tex. Crim. App. 1991).

10. Id. at 421.

11. Id.

12. 477 S.W.2d 873 (Tex. Crim. App. 1971).

13. Id. at 875.

14. Id.

15. Id.

16. Id. at 875-76.

17. Id.

18. Tex. R. App. P. 33.1.

19. Arizona v. Washington, 434 U.S. 497, 503 (1978); Alvarez v. State, 864 S.W.2d 64, 65 (Tex. Crim. App. 1993).

20. Crist v. Bretz, 437 U.S. 28, 35 (1978); Downum v. United States, 372 U.S. 734, 735-736 (1963).

21. Oregon v. Kennedy, 456 U.S. 667, 672 (1982); United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 (1824); State v. Torres, 805 S.W.2d 418, 422 (Tex. Crim. App. 1991); Alvarez, 864 S.W.2d at 65.

22. United States v. Jorn, 400 U.S. 470, 480 (1971); Downum, 372 U.S. at 736; Brown v. State, 907 S.W.2d 835, 839 (Tex. Crim. App. 1995).

23. Brown, 907 S.W.2d at 839.

24. Brown, 907 S.W.2d at 839; Ex parte Little, 887 S.W.2d 62, 66 (Tex. Crim. App. 1994); Harrison v. State, 788 S.W.2d 18, 22 (Tex. Crim. App. 1990); Torres, 614 S.W.2d at 442.

25. Brown, 907 S.W.2d at 839; Harrison, 788 S.W.2d at 21.

26. Washington, 434 U.S. at 516-17.

27. Brown, 907 S.W.2d at 839; Little, 887 S.W.2d at 66; Harrison, 788 S.W.2d at 23-24.

28. Anderson v. State, 635 S.W.2d 722, 725 (Tex. Crim. App. 1982); Torres, 805 S.W.2d at 421.

29. Washington, 434 U.S. at 505; Kennedy, 456 U.S. at 683-84 (Stevens, J., concurring). See also Grady v. Corbin, 495 U.S. 508, 522 n.14 (1990).

30. See Little, 887 S.W.2d at 66; Washington, 434 U.S. at 516-17.

31. Moore v. State, 999 S.W.2d 385, 398-99 (Tex. Crim. App. 1999), cert. denied, 530 U.S. 1216 (2000).

32. __ S.W.3d __, No. 00-1879/80, 2002 Tex. Crim. App. LEXIS 142 (Tex. Crim. App., delivered June 26, 2002).

33. 958 S.W.2d 813 (Tex. Crim. App. 1997).

34. 597 S.W.2d 769 (Tex. Crim. App. 1980)

35. See Hatch, 958 S.W.2d at 816 n.4.

36. 906 S.W.2d 931 (Tex. Crim. App. 1995).

37. Landrum v. State, 788 S.W.2d 577, 579 (Tex. Crim. App. 1990).

38. Brown, 907 S.W.2d at 839.

39. Ohio v. Roberts, 448 U.S. 56, 74 (1980).