*Pursuant to 5TH CIR. R. 47.5 the Court has determined that this

opinion should not be published and is not precedent except under

the limited circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 97-41219

Summary Calendar

 

JON ALLAN ASHCRAFT,

Plaintiff-Appellant,

versus

CAMERON COUNTY,

Defendant-Appellee.

 

Appeal from the United States District Court for the

Southern District of Texas

USDC No. B-97-CV-229

 

August 17, 1998

Before GARWOOD, JOLLY and BARKSDALE, Circuit Judges.*

GARWOOD, Circuit Judge:

Jon Allan Ashcraft (Ashcraft), Texas prisoner #638807, appeals

the district court’s dismissal without prejudice of his civil

rights lawsuit, pursuant to 42 U.S.C. § 1983, alleging that he was

denied access to the courts by virtue of the inadequate law library

at the Cameron County, Texas, jail.
1Affirmance of Ashcraft’s conviction for a different burglary

is reported in Ashcraft v. State, 934 S.W.2d 727 (Tex. App.——Corpus

Christi 1996; pet. ref’d).

2The court of appeals’ opinion observes that Ashcraft’s trial

counsel attempted to withdraw before trial because Ashcraft could

not pay his fee; the trial court denied the motion but appointed

the attorney to represent Ashcraft “at the State’s expense so that

he could continue to represent appellant.” Id. at 829.

2

Factual and Procedural Background

As it ultimately stood at the time of its dismissal,

Ashcraft’s complaint concerning the adequacy of the law library

related entirely to the affirmance of his conviction in Texas

courts for burglary of a habitation. The opinion of the court of

appeals affirming this conviction is reported in Ashcraft v. State,

900 S.W.2d 817 (Tex. App.——Corpus Christi 1995; one pet. ref’d, one

pet. dism’d).1

Ashcraft alleged below that his appeal was initially

“dismissed on 11/19/92 for want of jurisdiction.” In his brief

here, he asserts that his attorney had failed “to file his notice

of appeal on time.” He alleged below that “on March 16, 1993,

Attorney for Esquivel withdrawn [sic] as appellate counsel.

Another attorney was not appointed until 12/08/93 . . . Leaving

Plaintiff nine months without counsel.”2 In his brief here,

Ashcraft states that he was granted an out-of-time appeal. The

report of the opinion on his appeal reflects representation of him

by attorney Alfredo Padilla. Id. at 821. Ashcraft alleged below

that on November 24, 1993, while he was without counsel, he
3Below, Ashcraft alleged his name was Andres Garcia.

4The court of appeals’ opinion also reflects the following

viz: “At his [Ashcraft’s] arraignment, Andres Hernandez, another

person being arraigned that day, testified that appellant

3

prepared and filed in the Texas trial court a motion for new trial

asserting error in the trial court’s denial during trial of the

oral, unsworn motion for continuance which his attorney had made

during trial on the basis that counsel was awaiting execution of a

bench warrant for a material witness who would testify for the

defense. Ashcraft asserts here that the witness was Andres

Hernandez and the opinion of the court of appeals likewise so

reflects. Id. at 834.3 In his direct appeal, Ashcraft contended,

as he had at trial, that his confession, taken in part by detective

Araiza, was inadmissible because “the police threatened and coerced

him by threatening to jail his mother and withholding medication”

and because “he was under the influence of a narcotic and/or the

medication.” Id. at 824. After an evidentiary hearing out of the

presence of the jury, the trial court found to the contrary and the

court of appeals affirmed that determination. Id. at 824-25.

Ashcraft did not below allege what Hernandez would have testified

to, but the opinion of the court of appeals states that in that

court Ashcraft contended “that the material witness would have

testified that appellant’s confession was not given voluntarily and

that this testimony could have influenced the jury’s verdict.” Id.

at 833.4 Before us, Ashcraft asserts “this key witness Andres
[Ashcraft] ‘looked all strung out’ and that he looked drunk or on

downers or pills.” Id. at 823.

4

Hernandez would have testified that Detective Araiza had on

numerous times used coercive tactics on him in order to get

cooperation.” Ashcraft alleged below, and the opinion of the court

of appeals likewise reflects (id. at 834), that his motion for new

trial had attached in support the affidavit of his trial counsel,

but the affidavit did not say what Hernandez would have testified

to. Ashcraft asserts, as he did below, that this omission caused

the court of appeals to overrule his ninth point of error in that

court, which the court of appeals’ opinion describes as follows:

“By point nine, appellant contends that the trial court erred in

overruling his oral motion for continuance since appellant was

awaiting the execution of a bench warrant for a material witness

who would testify in his behalf.” Id. at 833 (appellant has never

contested this description of his ninth point of error). Ashcraft

contends, as he did below, that had the county had an adequate law

library this omission in his attorney’s affidavit in support of the

motion for a new trial would not have occurred.

In overruling Ashcraft’s ninth point of error complaining of

the denial of the motion for continuance, the court of appeals

wrote in material part as follows:

“Articles 29.03, 29.06, 29.08, and 29.13 of the Code

of Criminal Procedure govern the procedures for

continuance of a criminal action. Article 29.03 provides

for continuance of a criminal action on the written
5

motion of the State or of the defendant upon a showing of

sufficient cause. TEX.CODE CRIM.PROC.ANN. art. 29.03

(Vernon 1989). Article 29.08 requires that a person

having personal knowledge swear to the facts in the

motion for continuance. TEX.CODE CRIM.PROC.ANN. art. 29.08

(Vernon 1989). In defendant’s motion for continuance

based on the absence of a witness, defendant must state:

. . . .

3. the material facts expected to be proved by the

witness;

. . . .

TEX.CODE CRIM.PROC.ANN. art. 29.06 (Vernon 1989).

A motion for continuance is a matter left to the

sound discretion of the trial court. TEX.CODE. CRIM.

PROC.ANN. art. 29.06 (Vernon 1989). In Hightower v.

State, 629 S.W.2d 920, 926 (Tex. Crim. App. 1981), the

court held there was no abuse of discretion to refuse an

oral motion for continuance. See also Gonzales v. State,

470 S.W.2d 700, 701 (Tex.Crim.App. 1971) (the trial court

did not abuse its discretion when it denied a motion for

continuance that was oral, was not sworn, and did not

meet the other requirements of article 29.06). The trial

court’s refusal to grant a verbal motion for continuance,

whether made before or after trial commenced, is not

ground for reversal. Stubbs v. State, 457 S.W.2d 563,

564 (Tex.Crim.App. 1970).

To preserve error and challenge a trial court’s

refusal of a motion for continuance made because of an

absent witness, appellant must file a sworn motion for

new trial, stating the testimony he expected to present

by the witness. Varela v. State, 561 S.W.2d 186, 191

(Tex.Crim.App. 1978); Flores v. State, 789 S.W.2d 694,

698-99 (Tex.App.——Houston [1st Dist.] 1990, no pet.).

. . . .

Appellant filed an application for a bench warrant for

Andres Hernandez on June 23, 1992, the day of the trial,

and the court issued the warrant on the same day. At the

conclusion of the State’s evidence, appellant’s counsel

orally moved for a continuance on the basis that the

warrant had not been executed yet and that Hernandez was
6

material to the defense’s case. The trial court denied

appellant’s motion. Appellant filed a motion for new

trial accompanied by trial counsel’s affidavit. The

affidavit did not state what evidence or testimony

Hernandez would present. The trial court did not abuse

its discretion in denying appellant’s oral, unsworn

motion for continuance. Moreover, because appellant’s

motion for new trail did not comply with the

requirements, appellant did not preserve error. We

overrule appellant’s ninth point of error.” Id. at 833-

34 (emphasis added).

Ashcraft alleged below that the failure by the state trial

court to continue the case so the bench warrant could be executed

“was a violation of Plaintiff’s Sixth and Fourteenth Amendment . .

. rights” to have compulsory process for attendance of witnesses.

Ashcraft also asserted at least twice below that he intended to use

findings in his instant section 1983 action to “apply . . . in his

upcoming state habeas corpus 11.07 proceedings” (referring to the

Texas habeas corpus statute; Tex. Code Crim. Proc. art 11.07).

Discussion

1. A criminal defendant cannot complain that he was denied

access to the courts while represented by counsel. Tarter v. Hury,

646 F.2d 1010, 1014 (5th Cir. 1981). Moreover, a prisoner making

such a complaint must show actual resulting prejudice to his legal

claim. Lewis v. Casey, 518 U.S. 343, 351 (1996). And, if

establishing a section 1983 claim will demonstrate the invalidity

of the conviction, the claim must be treated as one for habeas

corpus, even if habeas-type relief is not requested, and must be

dismissed if state remedies have not been exhausted. Heck v.
7

Humphrey, 512 U.S. 477, 481-82 (1994).

2. In order to prevail on his access to the courts claim,

Ashcraft must establish he was without counsel in reference to his

motion for new trial. Tarter. He must also prove his legal

position was prejudiced. Lewis. As he was indigent, the absence

of counsel arguably could amount to a violation of his Sixth

Amendment right to counsel. If the absence of counsel at that time

caused his appeal to be affirmed, instead of reversed, and

especially if, as he alleged, caused denial of his Sixth and

Fourteenth Amendment rights to have compulsory process for

attendance of witness to be uncorrected, then the validity of his

conviction could arguably be implicated. Accordingly, if Ashcraft

has a valid section 1983 claim, dismissal under Heck for failure to

exhaust was proper.

3. In any event, it is clear that there is no valid section

1983 claim.

To begin with, it appears that Ashcraft was represented by

counsel. Trial counsel prepared the affidavit used to support the

motion for new trial. Moreover, under the Texas rules, once

appointed, Ashcraft’s trial counsel was obligated to continue his

representation through the appellate process unless he was

permitted to withdraw by the trial court or relieved by the

appointment of appellate counsel. See Vernon’s Ann. Tex. C.C.P.
5Article 26.04(a) provides: “[a]n attorney appointed under

this subsection shall represent the defendant until charges are

dismissed, the defendant is acquitted, appeals are exhausted, or

the attorney is relieved of his duties by the court or replaced by

other counsel.” Id. 

6And, the only relief prayed for is damages. In any event,

since Ashcraft has since been transferred out of the county, he

would lack standing to pursue declaratory or injunctive relief.

8

Art. 26.04 (West 1997).5 And, Ashcraft had appointed counsel on

appeal. That new counsel did not immediately contact him or work

with him does not mean he was without counsel. Nor would a few

days’ gap in technical representation have been material here for

purposes of Tarter.

But even if Ashcraft was relevantly without counsel in

connection with the motion for new trial, it is clear that he

suffered no damage or harm as a result.6 The only relevant

contention on the state appeal was whether the trial court erred in

denying the motion for continuance. Texas law requires such a

motion to be in writing (Tex. Code Crim. Proc. art. 29.03) and

sworn to (Id. art. 29.08), as the court of appeals expressly held.

That court therefore held that the trial court did not err “in

denying appellant’s oral, unsworn motion for continuance” and that

“[t]he trial court’s refusal to grant a verbal motion for

continuance . . . is not ground for reversal.” The Texas Court of

Criminal Appeals has long held that denial of an oral, unverified

motion for continuance presents nothing for review. As stated in

Montoya v. State, 810 S..W. 2d 160, 176 (Tex. Crim. App. 1989),
7Also, in Montoya, Lewis, and Galvan there is no mention of

any lack of or insufficiency in any motion for new trial; the sole

ground of affirmance is that the motion for continuance was oral or

9

cert. denied, 112 S.Ct. 426 (1991): “Because appellant’s motion

for continuance was neither in writing, Article 29.03, V.A.C.C.P.,

nor sworn to, Article 29.08, V.A.C.C.P., we are compelled to find

that nothing has been presented for review.” (Emphasis added).

Accord Lewis v. State, 664 S.W.2d 345, 349 (Tex. Crim. App. 1984)

(“Appellant did not file a written motion for continuance. An oral

motion for continuance presents nothing for review.”); Galvan v.

State, 461 S.W.2d 396, 398 (Tex. Crim. App. 1971) (“Since the

motion [for continuance] was not sworn to by defendant himself, as

required by Article 29.08, V.A.C.C.P., it is not before this Court

for review”); Stubbs v. State, 457 S.W.2d 563, 564 (Tex. Crim. App.

1970) (“The trial court’s refusal to grant a verbal application for

a postponement or a continuance, whether made before or after trial

commenced, is not ground for reversal”). A motion for new trial,

filed more than a year after verdict and sentence, cannot change

the fact that the motion for continuance, made and denied during

trial and before verdict, was neither written nor sworn. Even if

the motion for new trial had been in proper form, that necessarily

would not have changed the fact that there was no error in

overruling the oral, unsworn motion for continuance. See, e.g.,

Stubbs, cited by the court of appeals here and in which there was

an apparently adequate motion for new trial.7 Even if the motion
unsworn or both. Further, a ground of error can generally not be

raised for the first time in a motion for new trial, but proper

objection, motion, or the like must have been made when the

complained-of event occurred during trial. See, e.g., Collins v.

State, 194 S.W.2d 410, 411 (Tex. Crim. App. 1946); Maxwell v.

State, 115 S.W.2d 937, 939 (Tex. Crim. App. 1938).

8Ashcraft’s complaint that he was entitled to a default

judgment is without merit as defendants were never served in the

severed suit in which his particular claim was first raised.

10

for new trial had been in proper form, the conviction would

nonetheless have been affirmed. That is clear from the court of

appeals’ opinion and from settled Texas law.

It is clear that Ashcraft suffered no harm to his legal

position by virtue of any inadequacy in the county library during

any time (if any there was) he was not represented by counsel.

Conclusion

Ashcraft demonstrates no reversible error in the dismissal

without prejudice of his suit.8 The judgment of the district court

is therefore

AFFIRMED.