Alexander represents a not uncommon situation where a matter completely outside the control of the prosecutor results in an acquittal. In that retaliation case, the trial judge thought it was better to let a juror attend her daughter's university ceremony than the scheduled trial and accordingly, on its own, declared a mistrial and discharged the jury originally selected to hear the case because the judge thought it would be easier (quicker) to just select another jury. That may have been true, but, of course, the Defendant had an absolute right to have the case heard by the first set of jurors.

Presumably, the State should have moved for a continuance in Alexander once the Defendant refused to proceed with the remaining eleven jurors (who were willing to come to the trial). But, if the court had denied that continuance and still discharged the jury, what could the State do? Ask for time to mandamus the trial judge to grant the continuance? There would not seem to be any pigeonhole in art. 44.01(a) for any challenge to this action through a state's appeal (and relief through an appeal would hardly be feasible anyway). But, even without having requested a continuance, why could not the court of appeals have remanded the case back for trial by the original twelve jurors, effectively declaring the order discharging them was void? Maybe we need a statute that sets forth exactly when a court may declare a mistrial. Why are trial judges so often bent on choosing the quickest solution to every problem that arises? Have they never heard that haste makes waste?