Rowe v. State , 848 S.W.2d 896 ( 1993 )

OPINION

SEARS, Justice.

Appellant was arrested and charged with murder and two counts of aggravated assault. He remained in continuous custody for over ninety days without being indicted. He filed a writ of habeas corpus in the trial court requesting release on a personal recognizance bond. The Court denied the writ. In his sole point of error, appellant contends the trial court abused its discretion in denying his writ for release on a personal bond. We affirm.

TexUode Crim.Proc.Ann. art. 17.151 (Vernon Supp.1993) provides the standard by which this Court reviews a trial court’s refusal to release a defendant on a personal bond, when the defendant has not been indicted within ninety days. Article 17.151 provides that:

A defendant who is detained in jail pending trial of an accusation against him must be released either on personal bond or by reducing the amount of bail required, if the State is not ready for trial on the criminal action for which he is being detained within ... ninety days from the commencement of his detention. (emphasis added).

Bail was originally set at ten-thousand dollars for the murder charge, and four-thousand dollars for the aggravated assault charge. The trial court reduced each bond by one-thousand dollars, in response to a motion to reduce the bail. Appellant asserts that he is unable to meet even this reduced bail. However, Appellant’s request for relief was not for reduced bond, it was for a personal bond; therefore, it is immaterial whether he can make the reduced bond. Also, Appellant’s claim that he cannot meet the bail set does not, by itself, call for either a further reduction in the bail, or release on a personal bond. Ex parte Stearnes, 761 S.W.2d 388, 390 (Tex.App.—Amarillo 1988, pet. ref’d).

The trial judge asked the assistant district attorney why the Appellant had not been indicted within the required ninety day period. The prosecutor responded that one of the reasons she delayed taking the case to the grand jury, was because the Appellant wanted to testify to the grand jury. Apparently, the Appellant changed his mind and elected not to testify. The Appellant did not contradict that this was a part of the explanation for the delay.

When a party invites error, he can not later com plain of or attempt to gain an advantage based upon that error. Capistran v. State, 759 S.W.2d 121, 124 (Tex.Crim.App.1982), We hold that a delay in indicting, that is caused by the accused’s request to testify before the grand jury, will not be held against the State or entitle the accused to a personal recognizance bond. Further, Appellant has not brought a complete record because we do not have the indictment, nor is there any testimony as to when the Appellant was indicted. Therefore, we find no abuse of discretion and affirm the judgment of the trial court.