COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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JESUS TERRAZAS, No. 08-12-00231-CR
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Appellant, Appeal from the
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v. 346th District Court
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THE STATE OF TEXAS, of El Paso County, Texas
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Appellee. (TC# 20050D02246)
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OPINION
Jesus Terrazas appeals his conviction on two counts of aggravated sexual assault of a
child. In his sole issue for review, Appellant maintains that his conviction should be reversed
because his prior defense attorney revealed privileged communications to the jury during direct
examination when Appellant called him to the stand as a defense witness. We affirm.
BACKGROUND
Because Appellant does not challenge the sufficiency of the evidence, we recite only
those facts necessary to the determination of this appeal. During police interrogation following
waiver of his Miranda1 rights, Appellant admitted to engaging in oral and vaginal sex with his
then thirteen-year-old daughter. He expressed regret for his actions and maintained that this was
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.2d 694 (1966).
the first and only time he had ever sexually abused her. His daughter confirmed the assault
occurred through her trial testimony. Appellant’s wife also testified that she walked in to her
daughter’s room the night of the sexual assault, saw her daughter shaking on the bed, and then
saw Appellant with only his boxers on and his penis erect.
At trial, the State adduced testimonial evidence from a U.S. Marshall showing that
Appellant missed his first trial date because he absconded to Mexico. In an attempt to show that
Appellant’s flight from the United States was motivated not by consciousness of guilt but by
panic over a breakdown in the attorney-client relationship between Appellant and his previous
court-appointed public defender Greg Velasquez, Appellant called Velasquez to the stand.
Velasquez testified that he was appointed as substitute counsel and reviewed Appellant’s
case. At some point during the course of Velsaquez’s representation, Appellant informed
Velasquez that he wished to hire a different attorney. At trial, Appellant asked Velasquez about
the state of the attorney-client relationship prior to Velasquez’s withdrawal at Appellant’s
request:
Q. And during your representation of Mr. Terrazas, did you ever get
the impression that the attorney/client relationship was not in the
best shape?
A. Yes
Q. Okay. And why was that?
A. We had conflicts discussing the case, talking about the case, what
to do with the case
Q. Personality conflicts, conflict in communication, things of that
nature?
A. Yes.
Q. Did Mr. Terrazas ever express to you concern, right or wrong,
about your preparation and your manner of preparation for the
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case?
A. Well, the problem arose when I would tell him I had been doing
this for such a long time and we need to get together and talk about
the case. And we wanted to know what the defense was. And we
would discuss, but every time I told him what the law was and
what the law required for the D.A. to prove and what we needed to
do to defend against the allegations, that’s where the conflicts
arose.
. . .
Q. How would you describe your attorney/client relationship at that
point?
A. He wasn’t happy.
Q. And had he expressed that dissatisfaction to you?
A. Yes
Q. And that’s not typically unusual in our line of work, right? It
happens sometimes?
A. Yes. It happens a lot.
Q. And it could be for many different reasons?
A. Yes.
Q. And, of course, at some point, you-all had been set for trial in this
case?
A. I think we got set twice, and this was the time that we were
supposed to go. I told him we were definitely going. ‘We need to
sit down and talk.’
Q. And there was very little communication at that point?
A. Hardly any communication.
Q. Okay. And at that point, why did you have to withdraw from the
representation?
A. Well, the case was set for trial. The day before we were set for
trial, I called him or he called me, and I told him he needed to
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come talk in the office. And he told me that he was going to hire
an attorney.
Q. And whether that happened or not, did he appear for his court date
the next day?
A. No, he did not.
Q. Did you have any other communication after that[?]
A. No, I did not.
Q. And that was part of why you had to withdraw from the
representation?
A. I withdrew because I thought there was going to be a conflict of
interest, and I had to testify one way or the other.
The jury convicted Appellant on both counts of aggravated sexual assault. He was
sentenced to sixty years’ imprisonment on each count, to be served consecutively. This appeal
followed.
DISCUSSION
“A client has a privilege to refuse to disclose and to prevent any other person from
disclosing confidential communications made for the purpose of facilitating the rendition of
professional legal services . . . .” TEX.R.EVID. 503(b)(1). Appellant and the State dispute
whether Velasquez’s general references to informing Appellant what the law was and what they
needed to do to defend the case revealed privileged content. We decline to answer that question,
since Appellant is estopped from seeking any relief for privilege violations he himself adduced.
The invited error doctrine precludes a party on appellate review from taking advantage of
an error it induced or caused in the trial court. Woodall v. State, 336 S.W.3d 634, 644
(Tex.Crim.App. 2011). Assuming arguendo that the act of calling Velasquez to the stand did not
constitute a waiver of the attorney-client privilege, cf. Ballew v. State, 640 S.W.2d 237, 240
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(Tex.Crim.App. 1980)(attorney-client privilege extended to psychiatrist waived when defendant
called psychiatrist to the stand), and assuming that Velasquez revealed information covered by
the attorney-client relationship, error, if any, resulted from Appellant’s own conduct in
attempting to refute the State’s contention that his flight represented consciousness of guilt.
Appellant called Velasquez to the stand as a defense witness and specifically asked him several
questions pertaining to their communications to establish that a breakdown in the attorney-client
relationship occurred prior to Appellant’s flight. Appellant cannot now complain that his
conviction should be reversed because his former attorney actually answered the questions he
posed.
The record does not indicate that the State ever sought to elicit privileged information or
take advantage of any disclosure. As such, any error falls directly on Appellant’s shoulders.
Under these facts, Appellant is estopped from using any privilege error stemming from the
examination of his ex-attorney to obtain appellate relief. “To hold otherwise would be to permit
him to take advantage of his own wrong.” Woodall, 336 S.W.3d at 644 [Internal quotations
omitted]. Finding no justiciable error before us, we overrule Appellant’s sole issue.
The judgment of the trial court is affirmed.
October 8, 2014
YVONNE T. RODRIGUEZ, Justice
Before McClure, C.J., Rodriguez, J., and Larsen, J. (Senior Judge)
Larsen, J. (Senior Judge, sitting by assignment)
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