Opinion filed July 8, 2010




                                                       In The


   Eleventh Court of Appeals
                                                      __________

                                               No. 11-10-00172-CR
                                                   __________

                                         IN RE STATE OF TEXAS


                                         Original Mandamus Proceeding


                                                      OPINION
       Relator, the State of Texas, seeks a writ of mandamus compelling respondent,
Hon. Robin Malone Darr, Judge of the 385th District Court of Midland County, to vacate her
“Order on Defendant’s Motion to Interview Child.” Respondent entered the order on January 20,
2010, in Cause No. CR36352, styled State of Texas v. Justin Miller.1 In Cause No. CR36352,
Miller has been indicted for the offense of aggravated sexual assault of a minor who was younger
than thirteen years old at the time of the alleged offense. Miller’s attorney filed a motion to
interview the child. Following a hearing on the motion, respondent entered her order allowing
an interview of the child as follows:
           IT IS THE ORDER OF THE COURT that the counsel for defense may
       propound written interrogatories that shall be presented to the child by the same
       neutral individual who made the initial inquiries, if possible. The questions shall
       be propounded to the child at the Children’s Advocacy Center and recorded under
       the same or similar circumstances as was used in the previous interview of the

       1
           The order was filed on January 21, 2010.
         child. Counsel for Defense may watch and listen to the interview by close circuit
         television and may propound additional questions through the neutral interviewer
         after the written interrogatories are addressed and answered. The entire
         questioning and answering of defense questions shall be limited to one hour. The
         one hour time limit will not include introductory questions and conversation
         initiated by the interviewer. The one hour time limit will begin when the
         interviewer begins asking the submitted interrogatories.

Respondent also provided in her order that the State could watch the interview by close circuit
television and propound questions after defense counsel’s questions had been answered.
         On June 30, 2010, the State filed its petition for writ of mandamus in this court. The
State asserts in its petition that respondent abused her discretion in entering the January 20, 2010
order. Although mandamus is not an equitable remedy, its issuance is largely controlled by
equitable principles.          Smith v. Flack, 728 S.W.2d 784, 792 (Tex. Crim. App. 1987); see
Rivercenter Assocs. v. Rivera, 858 S.W.2d 366, 367 (Tex. 1993); Callahan v. Giles, 155 S.W.2d
793, 795 (Tex. 1941).2 One such principle is that “[e]quity aids the diligent and not those who
slumber on their rights.” Rivercenter, 858 S.W.2d at 367 (quoting Callahan, 155 S.W.2d at 795).
Therefore, mandamus relief may be denied to a party for lack of diligence. In re Users Sys.
Servs., Inc., 22 S.W.3d 331, 337 (Tex. 1999) (orig. proceeding); Rivercenter, 858 S.W.2d at 367;
In re Wise, 20 S.W.3d 894, 895 (Tex. App.—Waco 2000, orig. proceeding). When the record
does not reveal a justification for the delay in filing a petition for writ of mandamus, a court may
appropriately deny mandamus relief. Rivercenter, 858 S.W.2d at 367; see also In re Xeller, 6
S.W.3d 618, 624 (Tex. App.—Houston [14th Dist.] 1999, orig. proceeding) (delay alone
provides ample ground to deny mandamus relief).
         In this case, the State did not file its petition for writ of mandamus until more than five
months after respondent entered her order. The record does not reveal a justification for the
State’s unexplained lengthy delay in seeking mandamus relief. By waiting more than five
months to request mandamus relief, the State has not diligently pursued its complaint to
respondent’s order.          See Rivercenter, 858 S.W.2d at 367; In re Xeller, 6 S.W.3d at 624.
Therefore, we deny mandamus relief to the State.


         2
           The Texas Court of Criminal Appeals often looks to the Texas Supreme Court decisions for guidance in mandamus
cases. See, e.g., State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 926 (Tex. Crim. App. 1994, orig. proceeding) (citing Callahan);
Smith, 728 S.W.2d at 792 (citing Callahan); see also Perkins v. Court of Appeals for the Third Supreme Judicial Dist. of Tex., at
Austin, 738 S.W.2d 276, 285 (Tex. Crim. App. 1987) (“[W]e look to the Supreme Court of Texas for guidance in this area of the
law.”).

                                                               2
       The State’s petition for writ of mandamus is denied.


                                                              PER CURIAM


July 8, 2010
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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