IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 98-50950
                         Summary Calendar



RONNIE HERNANDEZ,

                                           Plaintiff-Appellant,

versus

BILL BOLES, Deputy, Medina County, in
his individual and official capacity;
MEDINA COUNTY; WESLEY SCOTT, Sheriff,
Medina County Sheriff’s Department; JIM
JENKINS, Commissioner of Medina County
in his official capacity; STANLEY
KELLER, JR, Commissioner of Medina
County in his official capacity; ENRIQUE
SANTOS, Commissioner of Medina County,
in his official capacity; LOUIS
EHLINGER, Commissioner of Medina County,
in his official capacity,

                                           Defendants-Appellees.

                       - - - - - - - - - -
          Appeal from the United States District Court
                for the Western District of Texas
                           (94-CV-731)
                       - - - - - - - - - -

                           June 17, 1999

Before JOLLY, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

     Plaintiff-Appellant Ronnie Hernandez appeals the district

court’s entry of judgment against him in the civil rights lawsuit

he brought against Deputy Bill Boles and several other officials of

     *
        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that this opinion should not be published and is not precedent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.
Medina County, Texas.    Hernandez’s complaint alleged that Boles

used excessive force while arresting him for public intoxication.

Boles moved for partial summary judgment on the basis of qualified

immunity, but the district court denied the motion. The defendants

later filed a motion to dismiss, arguing that Hernandez’s suit was

barred by Heck v. Humphrey, 

(1994), and Hudson v.

Hughes, 

(5th Cir. 1996).   The district court converted

the motion into a motion for summary judgment and granted the

motion.

     In an appeal from an order granting summary judgment, we

review the record de novo.   Duckett v. City of Cedar Park, Tex.,

, 276 (5th Cir. 1992).      Summary judgment is proper

when, viewing the evidence in the light most favorable to the

nonmovant, there is no genuine issue of material fact and the

moving party is entitled to judgment as a matter of law.      Amburgey

v. Corhart Refractories Corp., 

, 809 (5th Cir. 1991);

Fed. R. Civ. P. 56(c).     If the moving party meets the initial

burden of establishing that there is no genuine issue, the burden

shifts to the nonmoving party to produce evidence of the genuine

issue for trial.    Celotex Corp. v. Catrett, 

, 321

(1986).

     Hernandez argues that the district court erred in determining

that Heck bars a 42 U.S.C. § 1983 claim that, if successful, would

imply the invalidity of a conviction obtained by a plea of nolo

contendere.   He notes that such a plea may not be used in a civil

case in Texas as an admission.   See TEX. CRIM. P. CODE ANN. § 27.02(5)


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(West 1999).       Hernandez’s argument misses the mark.                   In Heck, the

Supreme Court held that a § 1983 claim that “would necessarily

imply the invalidity” of a conviction is not cognizable until the

conviction has been set 

.           Whether the

conviction was obtained at trial, by a guilty plea, or by a nolo

plea is irrelevant to this inquiry.                  A court considering a defense

under Heck has no need to consider the plea as evidence; the court

instead looks merely to whether an implicated conviction has been

overturned.         See    

      The   fact    that    Hernandez’s

conviction was obtained after he pleaded no contest is of no

importance under Heck.            Cf. Smithart v. Towery, 

, 952

(9th Cir. 1996) (applying Heck to a conviction obtained via an

Alford plea).

       Hernandez     also      argues    that     the    district    court    erred   in

applying Hudson to his case.                    In Hudson, we held that Heck

precluded a Louisiana prisoner’s § 1983 excessive-force 

.         In   Louisiana,       we      noted,   self-defense    is    a

justification defense to a charge that a defendant battered a

police officer.       

was barred by Heck, because any

showing that the officer had used unreasonable force would have

necessarily implied that Hudson could have prevailed at trial on a

theory of self-defense.           

concedes, self-defense is a justification defense

in Texas as well.         He argues that the existence of the defense in

Texas is irrelevant because he has never attempted to attack his

conviction on the basis of self-defense.                         Nothing in Hudson,


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however,    limits    its    applicability    to    situations        in    which   a

defendant litigated and lost a justification defense.                 Rather, the

correct inquiry is whether the new § 1983 claim “would necessarily

imply the invalidity” of a valid conviction.               

(emphasis added).       As Hudson’s new claim would have necessarily

implied that he could have prevailed at trial, Heck precludes his

claim.      Hernandez    has    not   distinguished        his   situation     from

Hudson’s.

     Hernandez contends further that the district court erred in

granting summary judgment on the authority of Heck after it had

previously denied summary judgment on the basis of qualified

immunity.      A denial of a motion for summary judgment will not bar

a subsequent motion based on a different legal theory.                     Curran v.

Kwon, 

, 487 & n.11 (7th Cir. 1998).                   To the extent

Hernandez    argues     that   the    district     court    improperly       made   a

credibility determination when granting the second motion, he is

mistaken.    The court did not make a finding of fact that Hernandez

had assaulted Boles.        It held that, as a matter of law, Heck barred

consideration of Hernandez’s claim unless his conviction was set

aside.

     Hernandez also suggests that in granting the second motion,

the district court inappropriately relied on Boles’s version of

events   and     discounted    evidence     that    the     officer    improperly

retaliated against Hernandez’s assault.                This argument is not

appropriate to the summary-judgment posture of the case, presenting

the question whether there is a genuine issue of material fact and


                                        4
whether the defendants were entitled to judgment as a matter of

law.     Fed. R. Civ. P. 56(c).                Hudson will not support this

argument,    as   it    is   premised         on    an   understanding        that    the

defendant’s use of force and the officer’s reaction are necessarily

interrelated; Boles’s use of force is not analytically separable

from Hernandez’s.       

.

       Hernandez argues that the district court erred in failing to

determine    whether     his   excessive           force       claim   implicated      an

occurrence during or after arrest:                  If he was an arrestee, the

Fourth Amendment would govern his claim; if he was a pretrial

detainee, the Due Process Clause of the Fourteenth Amendment would

control.    Brothers v. Klevenhagen, 

, 455-56 (5th Cir.

1994).    The undisputed facts show that Hernandez was an arrestee.

In Valencia v. Wiggins, 

(5th Cir. 1993), we listed

three indicia of being a detainee rather than an arrestee.                            The

factors were      whether    (1)    the   incidents        of    arrest     [had     been]

completed,” (2) “the plaintiff had been released from the arresting

officer’s custody,” and (3) “the plaintiff had been in detention

awaiting trial.”       

       Here, all three of these factors

indicate that Hernandez was still an arrestee when he was shot.

Consequently,     the    district    court         did   not    err    in   considering

Hernandez’s claim under the Fourth Amendment.

AFFIRMED.




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