Ex parte Perez

*328OPINION

Ken Wise, Justice

After twelve jurors and an alternate were empanelled and sworn, and jeopardy attached, the trial court recessed the trial. The court attempted' to recall the jurors four months later with less than one day’s notice. It appeared that two of the jurors had moved out of the county, and only five jurors actually showed up. The trial court declared a mistrial over appellant’s objection. In this appeal from a denial of his application for a writ of habeas corpus, appellant contends that his retrial is barred by double jeopardy.

We hold that the State has failed to meet its…