COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

JESUS TERRAZAS

,

Appellant,

v.

THE STATE OF TEXAS,

Appellee. §

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§

§

§

§ No. 08

- 12

- 00 23 1

- CR

Appeal from the

346 th District Court

of El Paso County , Texas

(TC# 20050D02246 )



### O P I N I O N

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 durin g 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. Durin g police interrogation following

waiver of his Miranda 1 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)

.2

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 shak ing 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 c alled 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 at torney. 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/cl ient 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 the3 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 toget her 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 w here 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 to4 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 with drew 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 s erved 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

pro fessional legal ser vices . . .

. ” T EX .R.E VID

. 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 que stion,

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, 2405

(Tex.Crim.App. 1980)(attorney

- client p rivilege 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 r efute 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 an swered 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 advan tage of his own wrong.” Woodall , 336 S.W.3d at 644 [Internal quotations

omitted]. Finding no justiciable error before us, we overru le 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)