ON REHEARING
By his first point on rehearing, Rodriguez contends his counsel’s failure to file a motion for continuance which was sworn to did not waive error on that issue. Rodriguez directs this Court’s attention to two cases where intermediate appellate courts found that, though the general rule is a motion for continuance must be in writing and sworn to by a person having personal knowledge of the facts relied upon for the continuance, this rule is not absolute. Petrick v. State, 832 S.W.2d 767, 771 (Tex.App.—Houston [1st Dist.] 1992, pet. ref'd); O’Rarden v. State, 777 S.W.2d 455, 459 (Tex.App.—Dallas 1989, pet. ref'd). When circumstances surrounding the trial court’s denial of an oral motion for *412continuance amount to a denial of the rudiments of due process, such denial is subject to appellate review. Petrick, 832 S.W.2d at 770; O’Rarden, 777 S.W.2d at 459. Both of the cases cited by Rodriguez rely on Darty v. State, where the court found that a motion which is not reduced to writing and sworn to was not a statutory one and was therefore addressed only to the equitable powers of the court. 149 Tex.Crim. 256, 193 S.W.2d 195 (1946).
The court in the Darty case suggests that any written motion is a statutory motion, but one orally made does not have to follow the statutory guidelines. We find no recent case in which the Court of Criminal Appeals has attempted to follow this formula. The Court of Criminal Appeals has laid down a long line of cases confirming Article 29.08 of the Code of Criminal Procedure that all motions for continuance must be sworn to by a person having personal knowledge of the facts relied on for the continuance.5 (See notes of decisions under Tex.Code CRiM. PROcAnn. art. 29.08 (Vernon 1989)).
Rodriguez cites the Court of Criminal Appeals in Whitmore v. State for the broad proposition that when an accused’s constitutional rights are in conflict with a valid procedural rule of law, the procedural rule must yield to the superior constitutional right. 570 S.W.2d 889 (Tex.Crim.App.1976). The Whitmore case does not involve a motion for continuance. In the Whitmore case, a witness was unavailable during the time for the motion for new trial to be filed.6 The unavailability of the witness was based upon this witness taking the Fifth Amendment rights during the time frame in which the accused could have moved for a new trial. The witness later became available to testify, and Whitmore made an out-of-time motion for new trial on this basis. This was the situation in which the procedural time table kept Whitmore from being able to secure this witness. In the present case, there is no showing that the trial court would not give Rodriguez an opportunity to have the motion sworn to. Thus, there was no clash between the requirement that the continuance be sworn to and Rodriguez’s constitutional rights. He had an opportunity to preserve any rights that he may have had for a continuance by following the procedural requirements, but did not do so. Until such time as the Court of Criminal Appeals or the Texas Legislature changes the requirement, this procedure must be met.
By his second point on rehearing, Rodriguez argues this Court erred in finding there was no evidence the prosecutor threatened Hipps or told her not to testify. Rodriguez directs this Court’s attention to a statement in the record by Manuel Almaguer, the defense attorney who stated, lcWell, as I understand, the State has got her under investigation and told her to plead the Fifth as far as our facts are concerned with respect to our client.” Almaguer, however, was not testifying under oath at the time. Statements of counsel not under oath do not constitute evidence. Delgado v. State, 544 S.W.2d 929 (Tex.Crim.App.1977).
*413We find, therefore, there is no evidence the prosecution intentionally intimidated Hipps into not testifying. This point of error remains overruled.
. The purpose of requiring a sworn motion is to give credibility to the basis for the continuance. This would seem unnecessary when a matter is fully before the trial court. In this situation, the trial court would not need sworn pleadings to support the motion, but could consider testimony and support of the motion or the facts already before the court. A mandatory rule that all continuances must be in writing is a harsh requirement on parties in trial at the time the matter arising for which the continuance is sought. To have an opportunity to place the motion in writing and have it sworn to would sometimes require a delay of the trial until that matter could be completed, and the trial could often be expedited by allowing this motion to be oral and recorded by a court reporter.
. Since Whitmore, the Court of Criminal Appeals has emphasized that a defendant is not entitled to a new trial merely because a co-defendant’s testimony is "newly available.” See Van Byrd v. State, 605 S.W.2d 265, 267 (Tex.Cr.App.1980); Todd v. State, 601 S.W.2d 718, 720 (Tex.Cr.App.1980); Eddlemon v. State, 591 S.W.2d 847, 849 (Tex.Cr.App.1979). Thus, unless the defendant satisfies all four requirements for a new trial based on newly discovered or available evidence, he is not entitled to a new trial simply because a convicted co-defendant is ready, willing, and able to testify to facts, which, if believed by the jury, would exonerate the defendant.
Wilson v. State, 633 S.W.2d 351 (Tex.App.—Corpus Christi 1982, pet. ref'd).