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.
*
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opinion should not be published and is not precedent except under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.
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Attorney for Esquivel withdrawn [sic] as appellate counsel.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
1
Affirmance 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).
2
The 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
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
3
Below, Ashcraft alleged his name was Andres Garcia.
4
The 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
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
[Ashcraft] ‘looked all strung out’ and that he looked drunk or on
downers or pills.” Id. at 823.
4
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
5
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.
6
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.
7
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),
5
Article 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.
6
And, 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
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
7
Also, 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
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.
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).
8
Ashcraft’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