source: Caselaw Access Project

author: MEYERS, J., WOMACK, J.,

license: Public Domain

text:
    Ronnie Duane MASON, Appellant, v. The STATE of Texas.
    No. PD-1373-09.
    Court of Criminal Appeals of Texas.
    Oct. 6, 2010.

      L. Van Williamson, Amarillo, for Appellant.
    John L. Owen, Asst. Dist. Atty., Amarillo, Jeffrey L. Van Horn, State’s Atty., Austin, for State.
   OPINION

MEYERS, J.,

delivered the opinion of the Court

in which PRICE, KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ., joined.

Appellant, Ronnie Duane Mason, was convicted of capital murder and sentenced to life imprisonment. At a pretrial hearing, defense counsel requested the grand jury testimony of Anthony Richards, Appellant’s cousin. Upon receiving the testimony more than a year later, defense counsel saw that unauthorized persons had questioned Richards during the grand jury proceedings. Appellant filed a motion to quash the indictment, which the judge overruled. The court of appeals reversed the trial court’s judgment after concluding that the State’s unauthorized questioning caused harmful error. We granted review to determine the proper harm analysis for reviewing the overruling of Appellant’s motion to quash. We will reverse.

I. Facts

On the morning of June 28, 2004, officers responded to a call that a baby was not breathing. The child, eight-month-old Iveyonna Durley, had been left with Appellant and Richards when her mother went to work that day. Upon arriving at the apartment, the officers found Iveyonna without a pulse. Richards explained to the officers that he checked on the baby after hearing her scream and found that she had rolled off the bed and had hit her head. He said that he then called Appellant, who arrived at the apartment with Kresha Ryan. Richards repeated this story in subsequent statements, but eventually identified Appellant as the child’s killer.

Richards said that Appellant hit Iveyon-na with his fist two or three times while she was on the living room couch. At that point, Richards took the baby from the couch to her mother’s bed. In the bedroom, Appellant kicked Iveyonna and struck her with a mop or broom. Then, Appellant left the apartment to pick up Kresha, and Richards brought the baby back to the couch in the living room. Before Appellant left, he and Richards discussed that, if authorities questioned the state of the child, they would report that she fell off the bed. When Appellant and Kresha returned to the apartment five minutes later, Iveyonna was cold and not breathing. Kresha called 911. The autopsy determined the cause of death to be multiple blunt force injuries.

II. Procedural history

At a hearing over a year before the trial began, Appellant’s counsel requested a copy of the grand jury testimony to learn which of Richards’s various explanations he had presented to the grand jury. Defense counsel finally received the testimony just prior to the commencement of voir dire. The videotape of Richards’s testimony revealed that Sergeants Crandell and Dockery asked several questions of the witness. Both officers had been dispatched on the morning of Iveyonna’s death. Sergeant Crandell was one of the officers to arrive at the apartment that morning, while Sergeant Dockery was sent to the hospital to interview family members. Upon learning of the officers’ grand jury participation, defense counsel filed a motion to quash the indictment, asserting that the State had violated Articles 20.011 and 20.04 of the Code of Criminal Procedure. Code Crim. Proc. Ann. arts. 20.011 and 20.04. The trial court overruled Appellant’s motion, but acknowledged that “the statute is crystal clear” and that it had been violated during the grand jury proceedings. The jury found Appellant guilty of capital murder, and the court sentenced Appellant to life in prison.

III. Code of Criminal Procedure Articles 20.011 and 20.04

Article 20.011 lists those who may be present in a grand jury room while the grand jury is conducting proceedings:

(1) grand jurors;
(2) bailiffs;
(3) the attorney representing the [Sjtate;
(4) witnesses while being examined or when necessary to assist the attorney representing the [Sjtate in examining other witnesses or presenting evidence to the grand jury;
(5) interpreters, if necessary; and
(6) a stenographer or person operating an electronic recording device, as provided by Article 20.012.

Code Crim. Proc. Ann. art. 20.011. The State concedes that it may have violated Article 20.011. Determining whether the State in fact violated this statute hinges on whether the presence of the officers falls under subsection (4); that is, do they qualify as “witnesses ... necessary to assist the attorney ... in examining other witnesses”? Code Crim. Proc. Ann. art. 20.011. But a determination on this point is not necessary as we know with certainty that the officers’ questioning violated another statute, Article 20.04.

Article 20.04 strictly defines those who may question a witness before the grand jury:

The attorney representing the State may examine the witnesses before the grand jury and shall advise as to the proper mode of interrogating them. No person other than the attorney representing the State or a grand juror may question a witness before the grand jury. No person may address the grand jury about a matter before the grand jury other than the attorney representing the State, a witness, or the accused or suspected person or the attorney for the accused or suspected person if approved by the State’s attorney.

Code Crim. Proc. Ann. art. 20.04. The State concedes that it did violate Article 20.04.

IV. Court of appeals

On appeal, Appellant argued that the violations of Articles 20.011 and 20.04 were not harmless. The court of appeals agreed. Mason v. State, 290 S.W.3d 498 (Tex.App.-Amarillo 2009, pet. granted). The court conducted a harm analysis to “determine whether the violations of articles 20.011 and 20.04” affected the grand jury's decision to indict Appellant. Id. at 506. Because there was “evidence that the State’s violations likely exerted a substantial influence on the [g]rand [jjury’s decision,” and because the court could not say that the decision to indict was free from the substantial influence of the violations, the court of appeals determined that the trial court abused its discretion in denying Appellant’s motion. Id. at 509-10.

In its Petition for Discretionary Review to this Court, the State argued that the court of appeals misdirected the focus of its harm analysis by considering how the error affected the charging decision instead of how it affected the verdict. The State also asserted that the court of appeals improperly assumed a supervisory role. We will determine whether the court of appeals properly evaluated the effects of the State’s error.

V. Rule of Appellate Procedure 44.2

Rule of Appellate Procedure 44.2 addresses the treatment of reversible error in criminal cases.

(a) Constitutional Error. If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.
(b) Other Errors. Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.

Tex.R.App. P. 44.2. A statutory violation at the grand jury stage is not constitutional error, and therefore Rule 44.2(b) applies in this case. See Bank of Nova Scotia v. United States, 487 U.S. 250, 254-55, 108 S.Ct. 2869, 101 L.Ed.2d 228 (1988); United States v. Mechanik, 475 U.S. 66, 71, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986) (When evaluating prosecutorial misconduct involving the presence of two law enforcement agents at a grand jury proceeding, the Court applied the federal equivalent of Rule 44.2(b), Federal Rule of Criminal Procedure 52(a). That rule states, “Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.”)

Under Rule 44.2(b), a substantial right is affected when the error has a substantial and injurious effect or influence. See Taylor v. State, 268 S.W.3d 571, 592 (Tex.Crim.App.2008). The issue presented in this case is what should be examined for evidence of an effect or influence? Should the subject of our harm analysis be the grand jury’s decision to indict or the petit jury’s guilty verdict? The court of appeals chose to direct its attention to the product of the grand jury proceedings, while the State asserts that the harm analysis should focus solely upon the verdict.

VI. United States v. Mechanik

A similar issue was before the Supreme Court in Mechanik. Mechanik, 475 U.S. at 67, 106 S.Ct. 938. That case involved a violation of Federal Rule of Criminal Procedure 6(d), which limits those who may be present at a grand jury proceeding. Fed. R.CrimP. 6(d). The rule allows the presence of “the witness,” and so the fact that two law enforcement agents were “sworn together and questioned in tandem” gave the defendants grounds to move for dismissal of the indictment. Mechanik, 475 U.S. at 67-68, 106 S.Ct. 938.

In the majority opinion, written by Justice Rehnquist, the verdict resolved the issue:

We believe that the petit jury’s verdict of guilty beyond a reasonable doubt demonstrates a fortiori that there was probable cause to charge the defendants with the offenses for which they were convicted. Therefore, the convictions must stand despite the rule violation.

Id. at 67, 106 S.Ct. 938. Missing from the majority opinion is a detailed harm analysis. Instead of inspecting for effects of the rule violation, the Court held that “the petit jury’s verdict rendered harmless any conceivable error in the charging decision that might have flowed from the violation.” Id. at 73, 106 S.Ct. 938.

In her concurring opinion, Justice O’Connor directed attention to the charging decision, instead of the verdict, stating:

A Rule 6(d) violation is one affecting the grand jury proceeding and is not in any sense a trial error. Accordingly, the logical focus of the harmless error inquiry is an examination of the influence of the error on the charging decision.

Mechanik, 475 U.S. at 76, 106 S.Ct. 938 (O’Connor, J., concurring) (italics omitted). In addition to advocating a different focus, Justice O’Connor also presented a different analytical approach. In contrast to the majority’s decision, which she characterized as “a per se rule based on the ultimate verdict at trial,” Justice O’Connor completed a harm analysis asking if “the violation substantially influenced the grand jury’s decision to indict, or if there [wa]s grave doubt as to whether it had such effect.” Id. at 77-78, 106 S.Ct. 938. After reviewing the details of the violation and considering how the proceedings might have ended differently had the violation not occurred, Justice O’Connor concluded, as did the majority, that the convictions should not have been set aside. Id. at 79, 106 S.Ct. 938.

Later, in Bank of Nova Scotia, the Supreme Court adopted “the standard articulated by Justice O’Connor in her concurring opinion in United States v. Mechanik” as “the standard of prejudice that courts should apply” when “a court is asked to dismiss an indictment prior to the conclusion of the trial” for non-constitutional error. Bank of Nova Sco-tia, 487 U.S. at 256, 108 S.Ct. 2369. Bank of Nova Scotia endorsed Justice O’Connor’s focus on the charging decision as well as her completion of a harm analysis.

The prejudicial inquiry must focus on whether any violations had an effect on the grand jury’s decision to indict. If violations did substantially influence this decision, or if there is grave doubt that the decision to indict was free from such substantial influence, the violations cannot be deemed harmless.

Id. at 263, 108 S.Ct. 2369.

VII. Analysis

Based upon this precedent, we agree with the court of appeals that when addressing a grand jury statutory violation, the proper subject of a harm analysis is the product of those proceedings: the charging decision. We will consider whether Appellant’s substantial rights were affected by the violation and whether the unauthorized questioning had a substantial and injurious effect or influence on the grand jury’s decision to indict. Tex. R.App. P. 44.2(b). If the record does not show that the violation influenced the grand jury, or if we detect just a “slight effect,” then the trial court was correct to deny Appellant’s motion to quash. See Taylor, 268 S.W.3d at 592. In this analysis, we will examine the record as a whole. VanNortrick v. State, 227 S.W.3d 706, 709 (Tex.Crim.App.2007).

During Anthony Richards’s grand jury testimony, the State’s attorney, J. Patrick Murphy, conducted most of the questioning. Murphy’s questions covered the details of Appellant’s physical assault on Iveyonna. The questions posed by Sergeants Dockery and Crandell addressed further details of the assault (“At any time did you see any blood on the baby?”), Richards’s conflicting statements (“So everything you told me, pretty much, is a lie?”), his actions on the day of Iveyonna’s death (“You did change her diaper?”), and his inaction during the events which led to her death (“Do you feel like you should have done more to help that baby?”). Sergeant Dockery closed his participation by stating: “All I can say is I do appreciate the fact you did come and talk to us, and I appreciate the fact you stepped forward and talked to us. Hopefully you are telling us the truth. And all I can say is good luck to you.”

After reviewing the grand jury transcript, we do not detect a substantial and injurious effect on the grand jury’s decision to indict Appellant. The details regarding Appellant’s conduct on the date of Iveyonna’s death were well established by Murphy’s (authorized) questioning, and members of the grand jury could indict Appellant without the additional information solicited by Sergeants Dockery and Crandell. The unauthorized questioning served to paint a picture of Richards’s role, not Appellant’s. Therefore, we cannot say that “the violation substantially influenced the grand jury’s decision to indict” Appellant, nor is there “grave doubt as to whether it had such effect.” Mechanik, 475 U.S. at 78, 106 S.Ct. 938 (O’Connor, J., concurring).

The State’s second issue to this Court asserts that the court of appeals improperly assumed a supervisory role: “To reverse for purposes of ensuring the State’s more careful future attention to the procedural statutes is to assume an improper supervisory function.” If the court of appeals had reversed the trial court’s judgment solely for this reason, the State’s argument would be correct. Courts may not invoke supervisory power to prescribe “standards of prosecutorial conduct,” to circumvent a harm analysis, or to reverse a conviction after a harm analysis determines an error to be harmless. United States v. Williams, 504 U.S. 86, 46-47, 112 S.Ct. 1735, 118 L.Ed.2d 352 (1992); Bank of Nova Scotia, 487 U.S. at 254-55, 108 S.Ct. 2369. But the State’s argument ignores the court of appeals’s completion of a harm analysis and its detection of the violation’s effects upon the grand jury. The court was not simply acting to direct future conduct. To the contrary, the court concluded that Appellant was prejudiced by the State’s actions and then proceeded, with authority, to reverse the trial court. Though we disagree with the results of the court of appeals’s analysis, we will not say that the court of appeals exceeded its authority.

VIII. Conclusion

We agree with the analytical focus chosen by the court of appeals, but we do not agree with its conclusion that the State’s actions caused harmful error. Because the error here was not harmful, we reverse the court of appeals and affirm the judgment of the trial court.

WOMACK, J., filed a concurring opinion.

KELLER, P.J., concurred.

JOHNSON, J., dissented.

WOMACK, J.,

concurring.

Although I join the Court’s judgment, I would follow the reasoning of the Supreme Court’s opinion in United States v. Mechanik 475 U.S. 66, 106 S.Ct. 938, which this Court’s opinion quotes (ante, at 256), rather than Justice O’Connor’s concurring opinion.

      . Richards falsely identified himself and Appellant to the responding officers.

      . As a result of Iveyonna's death, Richards was charged with injury to a child by omission.

      . The date of this hearing was July 6, 2006, but several requests were made for the grand jury testimony over the course of approximately two years. In June of 2005, defense counsel filed a motion for discovery of grand jury transcripts. Then, on August 10, 2007, defense counsel filed a motion for disclosure and preservation of grand jury materials, followed by the motion to quash the indictment on August 17.

      . The State waived the death penalty, so the court automatically imposed a life sentence.

      . Statutory ambiguity makes this a difficult question to answer. We do not know whether “witnesses'' refers only to witnesses who appear before the grand jury, or whether the term also includes witnesses who appear later, at trial. The distinction is critical because while we know that Sergeants Crandell and Dockery were witnesses at trial, we do not know whether they were also witnesses during grand jury proceedings. It seems unlikely that Article 20.011 would refer to trial witnesses as the witnesses permitted to assist the State's attorney during grand jury proceedings. Such an interpretation would mean that a person’s role as a witness at trial could retroactively render his grand jury presence “authorized.” In this case, the officers were witnesses at trial more than two years after the grand jury proceedings; so to say that the role they served at trial in August of 2007 authorized their presence in front of the grand jury in January of 2005 seems absurd. If “witnesses” in this context refers exclusively to witnesses testifying before the grand jury, and if the officers were witnesses only at trial, then the State violated Article 20.011.

      . The court of appeals conducted its analysis on the premise that the State had conceded violating both statutes. However, in its briefs to both the court of appeals and this Court, the State admitted to violating only Article 20.04. The State's concessions regarding Article 20.011 are more vague. While the State may have violated Article 20.011, we cannot be certain. Therefore, we will refer to the State's "violation,” though the court of appeals believed there had been two statutory violations.

      . This Court granted review on the following two grounds:
      (1) The court of appeals employed an incorrect harm analysis in reviewing the State’s error in allowing unauthorized persons to question a witness before the grand jury; the focus should have been on whether the error affected Appellant’s substantial rights, rather than whether it contributed to the grand jury's charging decision.
      (2) In reversing a conviction for the avowed purpose of deterring the State's future violation of grand jury procedural statutes, notwithstanding the harmlessness of the violation involved, the court of appeals improperly assumed a supervisory role.

      . The majority hints that the analysis would be different "had the matter been called to [the district court's] attention before the commencement of the trial." Mechanik, 475 U.S. at 69-70, 106 S.Ct. 938. As it was, the defendants in that case did not acquire the grand jury transcript revealing the unauthorized presence of two law enforcement agents "until the second week of trial.” Id. at 70, 106 S.Ct. 938. In Appellant's case, the trial court did receive notice of the problem before the trial commenced.

      . If we were evaluating Richards’s testimony as a whole, then we would most certainly detect influence upon the jurors; but, importantly, we are exclusively concerned with the information solicited by the officers.

      . The court of appeals relied upon the Harris factors in reaching its conclusion that the State’s violations influenced tire grand jury’s decision. Harris v. State, 790 S.W.2d 568, 587-88 (Tex.Crim.App.1989). The factors include the source of the error and to what extent it was emphasized by the State. Id. The analysis in Hairis was governed by the antecedent to Rule of Appellate Procedure 44.2(a) "Constitutional Error,” former Rule of Appellate Procedure 81(b)(2); and therefore, we do not believe these factors to be helpful in Rule 44.2(b) analyses. In particular, the factor of "whether declaring the error harmless would encourage the State to repeat it with impunity,” is misplaced when addressing nonconstitutional error under Rule 44.2(b). Id. We acknowledge that the court of appeals is not alone in believing Harris to be useful in 44.2(b) harm analyses. See Smith v. State, 36 S.W.3d 134 (Tex.App.-Houston [14th Dist.] 2000, pet. ref’d). And, at times, this Court has invoked select factors from Harris in our 44.2(b) harm analyses. See Motilla v. State, 78 S.W.3d 352, 356-57 (Tex. Crim.App.2002) (endorsing the State’s emphasis of the error as a factor and stating that "our conclusion in Harris, that overwhelming evidence of guilt is a factor to be considered" applies in Rule 44.2(b) analyses); King v. State, 953 S.W.2d 266, 272 (Tex.Crim.App.1997) (that the State did not emphasize the error supported our conclusion that the appellant’s substantial rights were not affected under Rule 44.2(b)). Though the Harris factors might still be applicable in Rule 44.2(a) analyses, they are unnecessarily limiting when we are to consider the record as a whole. VanNortrick, 227 S.W.3d at 709.


author: MEYERS, J.,

text:
    Eugene MERCIER, Appellant, v. The STATE of Texas.
    No. PD-1121-09.
    Court of Criminal Appeals of Texas.
    Oct. 6, 2010.

      Joseph A. Connors III, McAllen, for Appellant.
    Jeffrey L. Van Horn, State Prosecuting Atty., Austin, for State.
   OPINION

MEYERS, J.,

delivered the opinion of the unanimous Court.

Appellant, Eugene Mercier, was convicted of conspiracy to commit barratry. The jury sentenced him to two years’ confinement, suspended for five years with community supervision, and a fine of $7,500. The trial court granted Appellant’s motion for a new trial and entered an order of acquittal based on insufficient evidence. The court of appeals reversed the trial court and remanded the cause for entry of the original jury verdict. State v. Mercier, 164 S.W.3d 799 (Tex.App.-Corpus Christi-Edinburg 2005) (Mercier I). On remand, the trial court reduced the sentence to six months in state jail, suspended for two years, and a fine of $7,500. Appellant appealed, and the court of appeals reversed the trial court’s judgment and dismissed the case because it granted the limitations claim. Mercier v. State, No. 13-06-00298-CR, 2009 WL 2568592, 2009 Tex.App. LEXIS 3349 (Tex.App.-Corpus Christi-Edinburg May 14, 2009) (not designated for publication) {Mercier II). The State filed a petition for discretionary review asking whether a harm analysis is necessary when a trial court fails to grant a motion to quash an indictment that does not toll the statute of limitations. We granted the petition to determine whether the court of appeals erred in failing to conduct a harm analysis. We will reverse.

FACTS AND PROCEDURAL HISTORY

Appellant was charged with barratry and conspiracy to commit barratry. The first indictment was returned by the grand jury on March 21, 2000, and alleged that the two counts of conspiracy to commit barratry occurred on or about September 30, 1997. Appellant was reindicted for the same offenses on December 19, 2001, and the first indictment was dismissed two days later. In the second indictment, the offenses were outside the three-year limitations period, and no tolling factors were included.

Appellant filed a pretrial application for writ of habeas corpus seeking his release based on the expiration of the limitations period. The trial judge denied the motion. After the jury was sworn, Appellant filed a motion to dismiss, asking the judge to reconsider the issue of the statute of limitations. The trial judge again denied the motion. After the State rested, Appellant asked the judge to enter, or to order the jury to enter, a judgment of acquittal or not guilty on the grounds that the indictment was time barred. The request was denied by the trial judge. The defense closed without presenting evidence, and the jury found Appellant guilty of conspiracy to commit barratry. Appellant filed a motion for a new trial raising multiple claims, including that the evidence was legally and factually insufficient to support his conviction and that the prosecution was barred by limitations. The trial court granted the motion and entered an order of acquittal, finding Appellant not guilty of the crime charged. The State appealed, and the court of appeals considered whether the evidence was legally sufficient to sustain the conviction. The court of appeals stated:

After reviewing all the evidence, we conclude that a rational trier of fact could have found beyond a reasonable doubt the essential elements of the offense. We conclude the evidence is legally sufficient. Thus, even applying deferential standards as we must, we conclude that, on this record, the trial court abused its discretion in granting a new trial and vacating the verdict on legal insufficiency grounds.

Mercier I, 164 S.W.3d at 823. The court of appeals reversed the trial court’s order and remanded the case for entry of judgment reflecting the jury’s verdict. On remand, the trial court reduced the sentence. Appellant then filed an appeal seeking dismissal.

COURT OF APPEALS

On appeal, Appellant argued that the trial court erred in denying his motions to dismiss based on the statute of limitations. He claimed that because the second indictment pleaded an offense outside the limitations period and did not plead a tolling provision, the indictment was fatally defective and should have been dismissed. The State responded that it was not required to plead tolling factors in the second indictment.

The court of appeals determined that Tita v. State, 267 S.W.3d 33 (Tex.Crim.App.2008), was directly on point and held that since the State failed to plead its reliance on the tolling provision in the second indictment, the trial court erred in denying the motion to dismiss. However, the court of appeals disagreed with Tita regarding whether this error was subject to a harm analysis. Tita held that failure to plead tolling facts in the indictment was a defect of substance and remanded for a harm analysis under Rule of Appellate Procedure 44.2(b). The court of appeals cited cases stating that a defect of substance is harmful per se or requires reversal without a showing of harm. Merrier II at :|12-13. The court also cited Dix and Dawson, 41 TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE § 20.42 (2d ed. Supp.2008), which states, “An erroneous failure to sustain an objection raising a defect of substance apparently requires automatic reversal regardless of whether the appellant was harmed.” According to the court of appeals, Tita’s remand “creates substantial confusion.” Merrier II at *9. The court of appeals concluded that Jackson v. State, 718 S.W.2d 724 (Tex.Crim.App.1986), is controlling in cases of a defect of substance and pointed out that the Court in Jackson reversed a conviction based on a defect of substance without conducting a harm analysis.

The court of appeals said that applying Rule 44.2(b) to defects of substance would render Code of Criminal Procedure Article 21.19 meaningless because Rule 44.2(b) would provide the same review for defects of substance as for defects of form. And Jackson said that the standard for defects of form, in which reversal is appropriate only if the defect prejudiced the defendant’s substantial rights, does not apply to defects of substance. Jackson, 718 S.W.2d at 725 n. 1. Therefore, the court of appeals determined that applying a harm analysis to substantive defects in an indictment is inconsistent with Jackson. Because we did not overrule Jackson, the court of appeals disregarded Tita’s remand for a harm analysis and instead followed Jackson. The court of appeals reversed the trial court and dismissed the prosecution. Merrier II at *19.

The State filed a petition for discretionary review asking, “Is the trial court’s erroneous failure to quash a charging instrument for its omission of language tolling the statute of limitations subject to a harmless-error analysis?”

ARGUMENTS OF THE PARTIES

The State says that the trial court’s error in failing to quash the indictment is subject to a harm analysis under Rule 44.2(b). The State infers that the reasons for the difference in holdings in Jackson and Tita are the intervening decision in Cain v. State, 947 S.W.2d 262 (Tex.Crim.App.1997), and the promulgation of Rule 44.2(b). Cain explicitly said that a harm analysis must be conducted for all but structural errors, and an indictment’s failure to allege tolling facts is not structural under the Supreme Court’s definition. Id. at 264. See Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (stating that a structural error is a “defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself’). The State says the harm standard from Rule 44.2(b) should be applied. Prior to the promulgation of Rule 44.2, all errors were subject to the same standard, and any error required reversal unless the appellate court determined beyond a reasonable doubt that the error did not contribute to the conviction or punishment. After Rule 44.2, the harm standard used depends on whether the error is constitutional or non-constitutional. For reversal on non-constitutional errors, the error must affect the defendant’s substantial rights. The State argues that Cain extends harm analysis to all except for structural errors and that the proper standard for harm analysis of a non-constitutional defect of substance in an indictment is Rule 44.2(b).

Appellant argues that Article 21.02(6) requires the face of the indictment to show a time that is not so remote that the prosecution of the offense is barred by limitations. Appellant claims that his constitutional rights were violated and that the court of appeals was correct in reversing the trial court due to “structural and reversible systemic errors affecting the entire framework of this prosecution.” Appellant states that this Court should not apply Rule 44.2(b) to a preserved limitations issue and that the State forfeited and waived the opportunity to have this reviewed for harm. Appellant says that the Rule 44.2(b) directions in Tita are “unconstitutional dictum” and that this is fundamental structural error that defies analysis and can never be proven harmless under Rule 44.2.

Appellant argues that if the error is subject to a harm analysis, it is constitutional error and must be analyzed under Rule 44.2(a). Appellant claims that dismissal was certain due to the substantive defect in the charging instrument, and this demonstrates prejudice to his due-process rights and violates the Separation of Powers clause, the due course of law, and ex post facto prohibitions. Appellant argues that the court of appeals cannot determine beyond a reasonable doubt that the error did not contribute to conviction.

Alternatively, if the error is not constitutional and is analyzed under Rule 44.2(b), Appellant says the error must be found harmful because it affects his substantial rights. Appellant claims that the trial court’s failure to grant his pretrial motion to dismiss resulted in a violation of the following rights: to be free from prosecution after the expiration of limitations, to have a sufficient indictment, to not be convicted of a crime alleged in a facially time-barred indictment, to proceed as if no prosecution had been commenced, to be fully discharged if the offense was barred by limitation before another indictment could be presented, and to proceed under an amended indictment. He states that, “Due to the certainty appellant obtained a conviction for an offense that was limitation time-barred, the error in the indictment had more than a slight influence on the jury’s verdict and thus affected Mercier’s substantial rights such as to require dismissal of the indictment and the prosecution.”

CASELAW

The court of appeals relied on Jackson to conclude that it was not necessary to conduct a harm analysis. The issue in Jackson was whether the charging instrument was fundamentally defective and thus subject to a motion to quash. The conviction was reversed based on a defect of substance in the information, and no harm analysis was conducted. The Court in Jackson did not discuss harm analysis, but simply stated in a footnote that it need not concern itself with recent decisions holding that defects of form are not grounds for reversal unless the defect itself prejudiced the defendant’s substantial rights. 718 S.W.2d at 725, citing Adams v. State, 707 S.W.2d 900 (Tex.Crim.App.1986).

A decade later, but before Rule 44.2(b) became effective, we decided Cain v. State. In Cain, we determined that “Except for certain federal constitutional errors labeled by the United States Supreme Court as ‘structural,’ no error, whether it relates to jurisdiction, volun-tariness of a plea, or any other mandatory requirement, is categorically immune to a harmless error analysis.” 947 S.W.2d at 264. Structural errors that are not subject to a harm analysis include total deprivation of the right to counsel at trial, a judge who is not impartial, unlawful exclusion of members of the defendant’s race from the grand jury, the right to self-representation at trial, and the right to a public trial. Arizona v. Fulminante, 499 U.S. at 309-10, 111 S.Ct. 1246. The harm standard we used in Cain was Rule of Appellate Procedure 81(b)(2). However, effective September 1, 1997 (less than three months after Cain was handed down), Rules 80(d), 81, and 83 were merged into Rule 44. At that point, the standard for non-constitutional errors became Rule 44.2(b), which states, “Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.”

The facts in Tita are very similar to those in the case before us. Tita filed a pretrial motion to dismiss his indictment on the grounds that it was barred by the statute of limitations. The State argued that the statute of limitations was tolled by previous indictments. The trial court denied the appellant’s motion as well as his motions for instructed verdict during the trial. The court of appeals affirmed the trial court, holding that the statute of limitations was a defense that the State did not have to negate in the indictment. 267 S.W.3d at 36. We disagreed and determined that the State was required to plead tolling facts in the indictment in order to avoid dismissal. Id. at 38. We reversed and, without addressing the issue of harm ourselves, remanded the case to the court of appeals for a harm analysis under Rule 44.2(b).

Recently, in Smith v. State, we concluded that the failure to allege in the indictment acts constituting recklessness was a defect of substance since recklessness was an element of the offense charged. Citing Tita, we stated, “Though we have intimated that a harm analysis would apply to substance defects, we have never squarely addressed the issue.” We remanded the ease to the court of appeals to determine what, if any, harm analysis applies. Smith, 309 S.W.3d 10, 19 (Tex.Crim.App.2010).

ANALYSIS

At the time of our holding in Smith, we had not yet been directly called upon to determine whether a defect of substance is subject to a harm analysis. For this reason, we remanded Smith for the court of appeals to consider this issue. However, because we granted the review before us for the express purpose of answering this question, we will address it here.

Code of Criminal Procedure Article 21.02(6) requires that an indictment indicate on its face that a prosecution thereunder is not barred by the applicable statute of limitations. We agree with the court of appeals that the indictment in this case is defective and that the trial court erred in refusing to grant Appellant’s motion to quash the indictment. We also agree that this is a defect of substance. See Code of Criminal Procedure Article 27.08(2) (stating that it is an exception to the substance of an indictment if “it appears from the face thereof that a prosecution for the offense is barred by a lapse of time”); of. Article 27.09 (listing defects of form in an indictment or information).

We disagree with the court of appeals’s decision to ignore Tita’s remand for a harm analysis. The court of appeals was correct that Tita is directly on point and the court of appeals should have understood from our remand in Tita that a harm analysis under Rule 44.2(b) applies to this case as well. The court of appeals overlooked Cain’s holding that only errors labeled as structural by the Supreme Court are immune from a harm analysis and disregarded the fact that Rule 44.2(b) was promulgated after Jackson and Cain to deal with non-constitutional errors.

We also disagree with the court of appeals that analyzing harm from a defect of substance under Rule 44.2(b) renders the analysis of defects of form in Article 21.19 meaningless. Article 21.19 states that “An indictment shall not be held insufficient, nor shall the trial, judgment or other proceedings thereon be affected, by reason of any defect of form which does not prejudice the substantial rights of the defendant.” Therefore, unless proceeding under the indictment violates the defendant’s substantial rights, the trial court does not err by allowing the trial to go on. The purpose of Rule 44.2(b) is for appellate courts to determine whether a non-constitutional error that occurred at the trial affected the defendant’s substantial rights, and if it did, then the error is reversible. Rule 44.2 does not consider whether the error is a defect of form or a defect of substance; rather it differentiates between constitutional error and other errors. Thus, while there may be some overlap between the two provisions, Article 21.19 is specific to defects of form and applies before, during, or after the trial, while Rule 44.2(b) deals with other error in general, including defects of substance, but only at the appellate level.

Article 27.09 outlines the only complaints about the form of the indictment that a defendant may raise, but unless those defects of form prejudice his substantial rights, the indictment will be deemed sufficient under Article 21.19 and the prosecution will continue. Under Article 27.08, a defendant may raise complaints about the substance of the indictment, and if those defects are present, then the indictment should be dismissed. However, if the trial court errs in failing to dismiss the indictment, then that error will be subject to a harm analysis under Rule 44.2.

CONCLUSION

A harm analysis under Rule of Appellate Procedure 44.2(b) is necessary when an indictment is defective due to the lack of a tolling provision. We reverse the court of appeals and remand for a harm analysis.

      . See Code of Criminal Procedure Article 44.01(a), stating in relevant part that the State is entitled to appeal an order in a criminal case if the order: (1) dismisses an indictment, (2) arrests or modifies a judgment, or (3) grants a new trial. All future references to Articles refer to the Texas Code of Criminal Procedure.


author: GEORGE C. HANKS, JR., Justice.

text:
    ACCUFLEET, INC., Appellants, v. HARTFORD FIRE INSURANCE COMPANY, Appellee.
    No. 01-08-00684-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Sept. 17, 2009.
    Rehearing Overruled Feb. 18 and March 9, 2010.

      Karen B. Jewell, Lawrence J. Fossi, Fossi & Jewell LLP, Houston, TX, for Appellants.
    Christine Kirchner, Steven J. Knight, Chamberlain, Hrdlicka, White, Williams & Martin, Houston, TX, for Appellee.
    Panel consists of Justices KEYES, HANKS, and BLAND.
   OPINION

GEORGE C. HANKS, JR., Justice.

In this insurance coverage dispute, Ac-cuFleet, Inc. (“AccuFleet”) appeals from the trial court’s granting summary judgment in favor of Hartford Fire Insurance Company (“Hartford”), and denying Accu-Fleet’s cross-motion for summary judgment. In two issues, AccuFleet argues that Hartford breached the insurance policy by failing to (1) defend AccuFleet and Continental Airlines, Inc. (“Continental”), an additional insured under the policy, and (2) indemnify Continental. We affirm the judgment of the trial court regarding Hartford’s duty to defend and indemnify Continental. We reverse the judgment of the trial court regarding Hartford’s duty to defend AccuFleet.

Factual and Procedural Background

AccuFleet is an aviation support business that contracts with airline carriers to provide various support services, including cleaning aircraft interiors and exteriors at airports. AccuFleet entered into a contract with Continental to provide ground support services to Continental at Newark International Airport. This services contract required AccuFleet to obtain and maintain insurance coverage, including automobile liability insurance and airport owners’ and operators’ general liability insurance. The contract also required that Continental be named as an additional insured under AccuFleet’s policies and that the insurance provided for Continental be primary, without the right of contribution from any insurance policy carried by Continental.

In January 2003, a ground tug — transporting luggage and driven by a Continental baggage handler — rear-ended an Accu-Fleet vehicle stopped at a stop sign on the tarmac. Gonzalo Escobar (“Escobar”), an AccuFleet employee, was a passenger in the AccuFleet vehicle and allegedly was injured in the collision. Escobar sued both AccuFleet and Continental in New Jersey state court for back injuries allegedly caused by the collision.

The AccuFleet vehicle involved in the collision was covered by an automobile insurance policy issued by Hartford to Accu-Fleet. Both Continental and AccuFleet made a written request to Hartford that it defend and indemnify Continental and Ac-cuFleet in the Escobar lawsuit. Continental’s demand was based on the claim that Continental was “an additional insured” under the policy. Hartford did not respond to either of these demands.

Subsequently, Continental paid Escobar $250,000 to settle the lawsuit. Continental made a demand to Hartford to be indemnified for the settlement amount. Hartford refused this demand. AccuFleet agreed to pay Continental a percentage of Continental’s attorneys’ fees in the Escobar lawsuit and the amount Continental paid to Esco-bar in settlement, and it took an assignment of Continental’s claims against Hartford.

AccuFleet filed this suit against Hartford, claiming breach of contract, violation of the duty of good faith and fair dealing, and violations of the Texas Insurance Code. The trial court severed and abated AccuFleet’s extra-contractual claims against Hartford, leaving only AccuFleet’s breach of contract claims, brought on its own behalf and on behalf of Continental, against Hartford. In these claims, Accu-Fleet contends that Hartford unlawfully refused to defend Continental and Accu-Fleet in the Escobar lawsuit and failed to indemnify Continental for amounts paid in settlement of the Escobar lawsuit.

Hartford moved for summary judgment on AccuFleet’s breach of contract claims and AccuFleet filed its own cross-motion for summary judgment against Hartford on Hartford’s liability for breach of contract. The trial court entered final judgment granting Hartford’s motion for summary judgment and denying AccuFleet’s motion for summary judgment. AccuFleet filed the instant appeal.

Summary Judgment Standard of Review

To prevail on a summary judgment motion, a movant has the burden of proving that it is entitled to judgment as a matter of law and that there is no genuine issue of material fact. Tex.R. Civ. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.1995). A plaintiff moving for summary judgment on its claim must establish its right to summary judgment by conclusively proving all the elements of its cause of action as a matter of law. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex.1999); Anglo-Dutch Petroleum Int’l, Inc. v. Haskell, 193 S.W.3d 87, 95 (Tex.App.-Houston [1st Dist.] 2006, pet. denied). When a defendant moves for summary judgment, it must either (1) disprove at least one essential element of the plaintiffs cause of action or (2) plead and conclusively establish each essential element of its affirmative defense, thereby defeating the plaintiffs cause of action. Cathey, 900 S.W.2d at 341; Yazdchi v. Bank One, Tex., N.A., 177 S.W.3d 399, 404 (Tex.App.-Houston [1st Dist.] 2005, pet. denied). When both parties move for summary judgment and the trial court grants one motion and denies the other, the reviewing court should review the summary judgment evidence presented by both sides and determine all questions presented and render the judgment that the trial court should have rendered. Tex. Workers’ Comp. Comm’n v. Patient Advocates of Tex., 136 S.W.3d 643, 648 (Tex.2004).

Discussion

In its first issue, AccuFleet contends that the trial court erred in granting Hartford’s motion for summary judgment on AccuFleet’s breach of contract claims because AccuFleet has established as a matter of law that Hartford breached the terms of AccuFleet’s automobile policy by refusing to provide a defense to Continental and AccuFleet in the Escobar lawsuit. In its second issue, AccuFleet contends that the trial court erred in granting Hartford’s motion because AccuFleet has established as a matter of law that Hartford breached the terms of the policy by refusing to indemnify Continental for the amounts it paid in settlement of the Esco-bar lawsuit. (Appellant’s Brief at 18). We address each of these arguments below.

Under the Terms of the Policy, Did Hartford Owe Both Continental and AccuFleet a Duty to Defend?

A. Law Concerning the Interpretation of Insurance Policies

The plain language of an insurance policy, like that of any other contract, must be given effect when the parties’ intent may be discerned from the plain language. Utica Nat’l Ins. Co. of Tex. v. Am. Indem. Co., 141 S.W.3d 198, 202 (Tex.2004). If the policy language has only one reasonable interpretation, then it is not ambiguous, and we construe it as a matter of law. Fiess v. State Farm Lloyds, 202 S.W.3d 744, 746 (Tex.2006); Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 157 (Tex.2003). If the contract is susceptible to two or more reasonable interpretations, then it is ambiguous and we must resolve the uncertainty by adopting a construction that favors the insured as long as that construction is not unreasonable. Fiess, 202 S.W.3d at 746 (citing Nat’l Union Fire Ins. Co. v. Hudson Energy Co., 811 S.W.2d 552, 555 (Tex.1991)). “When interpreting an insurance contract, we ‘must adopt the construction of an exclusionary clause urged by the insured as long as that construction is not unreasonable, even if the construction urged by the insurer appears to be more reasonable or a more accurate reflection of the parties’ intent.’ ” Evanston Ins. Co. v. ATOFINA Petrochems., Inc., 51 Tex. Sup.Ct. J. 460, 2008 WL 400394, at *5 (Tex. Feb. 15, 2008) (quoting Nat’l Union Fire Ins. Co., 811 S.W.2d at 555). ‘“Exceptions or limitations on liability are strictly construed against the insurer and in favor of the insured,’ and ‘[a]n intent to exclude coverage must be expressed in clear and unambiguous language.’ ” Id. (quoting Nat’l Union Fire Ins. Co., 811 S.W.2d at 555).

B. Duty to Defend

The duty to defend is distinct from, and broader than, the duty to indemnify. Zurich Am. Ins. Co. v. Nokia, Inc., 268 S.W.3d 487, 491 (Tex.2008). An insurer must defend its insured if a plaintiffs factual allegations potentially support a covered claim, while the facts actually established in the underlying suit determine whether the insurer must indemnify its insured. GuideOne Elite Ins. Co. v. Fielder Rd. Baptist Church, 197 S.W.3d 305, 310 (Tex.2006). Thus, an insurer may have a duty to defend but, eventually, no obligation to indemnify. Farmers Tex. County Mut. Ins. Co. v. Griffin, 955 S.W.2d 81, 82 (Tex.1997).

In determining a duty to defend, we follow the eight-corners rule, also known as the complaint-allegation rule: “an insurer’s duty to defend is determined by the third-party plaintiffs pleadings, considered in light of the policy provisions, without regard to the truth or falsity of those allegations.” GuideOne, 197 S.W.3d at 308. Thus, “[e]ven if the allegations are groundless, false, or fraudulent, the insurer is obligated to defend.” Zurich Am., 268 S.W.3d at 491. We resolve all doubts regarding the duty to defend in favor of the duty. King v. Dallas Fire Ins. Co. v. Merchs. Fast Motor Lines, Inc., 85 S.W.3d 185, 187 (Tex.2002). “Where the complaint does not state facts sufficient to clearly bring the case within or without the coverage, the general rule is that the insurer is obligated to defend if there is, potentially, a case under the complaint within the coverage of the policy.” Heyden Newport Chem. Corp. v. S. Gen. Ins. Co., 387 S.W.2d 22, 26 (Tex.1965); see also Gore Design Completions, Ltd. v. Hartford Fire Ins. Co., 538 F.3d 365, 368 (5th Cir.2008) (noting that “[t]he rule is very favorable to insureds because doubts are resolved in the insured’s favor”). The duty to defend is not impacted by facts ascertained before suit, developed in the course of litigation, or by the ultimate outcome of the suit. Trinity Universal Ins. Co. v. Cowan, 945 S.W.2d 819, 829 (Tex.1997). “If a complaint potentially includes a covered claim, the insurer must defend the entire suit.” Zurich American, 268 S.W.3d at 491.

C. The Language of AccuFIeet’s Policy

With this in mind, we turn to the policy language at issue here. Hartford issued a Special Multi-Flex Policy to AccuFleet, Inc. as its named insured. The policy includes a Business Auto Coverage Form, providing for liability coverage for damages the insured or some third parties must pay because of bodily injury resulting from the use of a covered auto. The policy provides the following grant of liability coverage:

We will pay all sums an “insured” legally must pay as damages because of “bodily injury” or “property damage” to which this insurance applies, caused by an “accident” and resulting from the ownership, maintenance or use of a covered “auto.”

The policy defines “auto” as a “land motor vehicle, ‘trailer’ or semi-trailer designed for travel on public roads.” “Auto” does not include “mobile equipment,” such as vehicles designed for use principally off public roads. The policy also excludes coverage for an insured’s liability resulting from the insured’s use of a “mechanical device.”

D. Escobar’s Allegations

In the underlying lawsuit, Escobar alleges that he was a passenger in a vehicle owned by AccuFleet that had stopped at a stop sign on the tarmac of the Newark airport. The vehicle was driven by Luis Hermosa, an AccuFleet employee. Esco-bar alleges that, while it was stopped at the sign, the AccuFleet vehicle was rear-ended by another vehicle, which was owned by Continental. Escobar further alleges that both AccuFleet and Continental “negligently, carelessly, and recklessly operated” their respective vehicles so as to cause the collision. Escobar alleges that as a result of the negligence of both Accu-Fleet and Continental and their respective drivers, he sustained serious and permanent personal injuries.

E. Analysis

Continental

We first address whether Continental meets the criteria to be covered under the policy. In this case, it does not and thus Hartford does not owe Continental a duty to defend. Under the facts alleged in Escobar’s pleading, Continental does not qualify for liability coverage for damages under AccuFleet’s automobile policy. A third party, such as Continental, may be covered under the terms of the policy if AccuFleet is required by contract to name the party as an additional insured. Continental does meet this first requirement. However, the third party is covered only if it also meets the definition of an “insured” under the terms outlined in Section II of the policy. Under the endorsement entitled “ADDITIONAL INSURED AND RIGHTS OF RECOVERY AGAINST OTHERS”, the policy provides in pertinent part:

BUSINESS AUTO COVERAGE FORM
A. Any person or organization whom you are required by contract to name as additional insured is an “insured” for LIABILITY COVERAGE but only to the extent that person or organization qualifies as a “insured” under the WHO IS AN INSURED provision of Section II-LIABILITY COVERAGE.

(Emphasis added).

Section II, subsection A(l) of the policy entitled “WHO IS AN INSURED” defines an “insured” as:

a. You for any covered “auto”.
b. Anyone else while using with your permission a covered “auto” you own, hire, or borrow....
c. Anyone liable for the conduct of an “insured” described above but only to the extent of that liability.

Here, although AccuFleet was required by contract to name Continental as an additional insured under the policy, under the facts as alleged in Escobar’s pleading, Continental does not qualify for liability coverage because it does not meet the definition of an “insured” under the express terms of Section II of the policy. Continental cannot satisfy subsection A(l)(a) because it is not included in the definition of ‘You” contained in the policy. Second, Continental does not qualify for liability coverage as an “insured” under subsection A(l)(b) because there is no allegation in Escobar’s lawsuit that the accident involved Continental’s use of any covered automobile that was owned, hired or borrowed by AccuFleet. Instead, the pleadings allege that Continental was using its own vehicle in a manner that caused Escobar’s injuries.

Third, Continental does not qualify for liability coverage under subsection A(l)(e) because there is no allegation in Escobar’s pleading that Continental was liable for AccuFleet’s alleged conduct, if any, that was involved in the accident. Because, under the facts alleged in Escobar’s pleading, Continental did not meet any of the criteria to be considered an “insured” under the policy, Hartford did not owe a duty to defend Continental in the Escobar lawsuit. Accordingly, we hold that the trial court did not err in granting Hartford’s motion for summary judgment regarding Continental’s breach of contract claims.

AccuFleet

In contrast, Escobar’s allegations are sufficient to state causes of action against AccuFleet that are within the coverage of the Hartford Policy, and Hartford therefore owed AccuFleet a duty to defend in the Escobar lawsuit. The Hartford Policy provides coverage for “all sums an ‘insured’ legally must pay as damages because of ‘bodily injury’ ... caused by an ‘accident’ and resulting from the ownership, maintenance or use of a covered ‘auto.’ ” (emphasis added). Here, Escobar alleges facts showing that his injuries were caused by an accident and resulting from the use of a covered auto. Escobar further alleges that both AccuFleet and Continental “negligently, carelessly, and recklessly operated” their respective vehicles so as to cause the collision. Id. Escobar alleges that as a result of the negligence of both AccuFleet and Continental and their respective drivers, he sustained serious and permanent personal injuries.

It is undisputed that AccuFleet is a named “insured” under the policy and that the vehicle driven by AccuFleet’s employee was a “covered auto” under the terms of the policy. Accordingly, we hold that Es-cobar’s lawsuit makes claims for “bodily injury” caused by an accident, and resulting from the ownership, maintenance or use of a “covered ‘auto’ ” as required for coverage under the terms of the policy. Thus, the pleadings, considered in light of the policy provisions, without regard to the truth or falsity of Escobar’s allegations, invoke Hartford’s obligation to defend. See GuideOne, 197 S.W.3d at 308.

F. Hartford’s Defenses to AccuFIeet’s Breach of Contract Claims

Was the Operation of a Vehicle that is not Covered Under the Policy the Sole Cause of the Accident?

Hartford argues that it has no duty to defend because the accident “undisputedly resulted from” Continental’s negligent use of a ground tug that was excluded from coverage under the policy and not the use of AccuFIeet’s vehicle. Hartford contends that we must consider extrinsic evidence to determine whether the accident only “resulted from” Continental’s use of the tug or, as plead by Escobar, the accident resulted from the use of both the tug and AccuFIeet’s vehicle. Specifically, Hartford argues that we must disregard Escobar’s express pleadings that his injuries were caused by the conduct of both the driver of the Continental tug and the driver of Ac-cuFIeet’s automobile and look to the deposition testimony of the Continental tug driver, correspondence from AccuFIeet’s attorney to Hartford and to Escobar’s attorney, and AccuFIeet’s pleadings in the instant ease to determine whether a duty to defend was triggered by Escobar’s lawsuit.

We decline to create an exception to the eight corners rule under the facts of this case and consider this extrinsic evidence to determine the existence of a duty to defend. The Texas Supreme Court has not recognized such an exception to the eight-corners rule. To the contrary, in cases in which the Texas Supreme Court has been asked to acknowledge exceptions to the rule, it has declined to do so. See, e.g., Pine Oak Builders, Inc. v. Great Am. Lloyds Ins. Co., 279 S.W.3d 650, 654 (Tex.2009) (“In deciding the duty to defend, the court should not consider extrinsic evi-denee from either the insurer or the insured that contradicts the allegations of the underlying petition.”); Zurich Am., 268 S.W.3d at 497 (“[W]hile Maryland has recognized exceptions, in some limited circumstances, to the eight-corners rule, Texas has not.”); see also D.R. Horton-Tex., Ltd. v. Market Int’l Ins. Co., 2006 WL 3040756, *5 (Tex.App.-Houston [14th Dist.] Oct. 26, 2006, pet. denied) (“We recognize that some state and federal courts interpret Texas law to permit a court to consider extrinsic evidence in determining whether a petition states a covered claim. To date, however, the Texas Supreme Court has not recognized such an exception.”); Tri-Coastal Contractors, Inc. v. Hartford Underwriters Ins. Co., 981 S.W.2d 861, 863 (Tex.App.-Houston [1st Dist.] 1999, pet. denied) (acknowledging the few Texas court of appeals cases that have allowed the use of extrinsic evidence to disprove coverage, but declining to create an exception to the eight-corners rule).

Is There a Causal Nexus Between Escobar’s Injury and the Use of a “Covered Auto?”

Next, Hartford argues that it has no duty to defend AccuFleet because the “causal nexus” between Escobar’s injury and the AccuFleet employee’s use of the covered auto is insufficient to trigger coverage. We disagree. The Texas Supreme Court has held that, in determining whether there is a sufficient causal nexus between a vehicle and alleged injury for coverage, “the use required is of the vehicle qua vehicle, rather than simply as an article of property.” Mid-Century Ins. Co. v. Lindsey, 997 S.W.2d 153, 156 (Tex.1999). The Court noted that it regards the following factors, drawn from “[t]wo well-established treatises on insurance law,” as helpful in analyzing the issue:

For an injury to fall within the “use” coverage of an automobile policy (1) the accident must have arisen out of the inherent nature of the automobile, as such, (2) the accident must have arisen within the natural territorial limits of an automobile, and the actual use must not have terminated, (3) the automobile must not merely contribute to cause the condition which produces the injury, but must itself produce the injury.

Id. at 157.

In this case, Escobar alleges that he was injured as the result of a rear-end accident involving a covered auto and a ground tug that occurred while Escobar was traveling inside of the covered auto on the tarmac of the Newark airport. Escobar’s petition specifically pleads that the accident and his injury were caused not only by Continental’s operation of the ground tug but also by AccuFleet’s negligent, careless, and reckless operation of the covered auto at the Newark airport. Accordingly, we hold that there is a sufficient causal nexus between AccuFleet’s vehicle and Escobar’s injury to trigger Hartford’s duty to defend AccuFleet in the Escobar lawsuit.

Hartford’s reliance on the holding in National Union Fire Insurance Company of Pittsburgh, PA v. Merchants Fast Motor Lines, Inc., 939 S.W.2d 139, 140-41 (Tex.1997), to support its argument that there is no “causal nexus” between Esco-bar’s injury and AccuFleet’s use of the covered auto as alleged in Escobar’s pleadings is misplaced. In Merchants Fast Motor Lines, the court addressed whether the insured’s allegedly negligent discharge of a gun, killing a passenger in another vehicle, triggered a duty to defend under the truck owner’s vehicle liability policy. Id. at 141. The Texas Supreme Court found there was no causal nexus between the injury sustained and the driver’s use of his auto, where the plaintiff failed to allege “even a remote causal relationship” between the use of the covered auto and the shooting. Id. As the Court held, the “mere fact that an automobile is the situs of [an] accident is not enough to establish the necessary nexus between the use and the accident to warrant the conclusion that the accident resulted from such use.” Id. at 142 (citations omitted). By contrast, in the instant case, Escobar’s pleading specifically states that the accident and his injuries were caused not only by Continental’s operation of the ground tug but also by AccuFleet’s negligent, careless, and reckless operation of the covered auto at the airport. Thus, unlike the covered automobile in Merchants Fast Motor Lines, the AccuFleet vehicle covered under the Hartford policy was not merely the situs of the accident.

Similarly, Hartford’s reliance on the holding in State and County Mutual Fire Insurance Company v. Trinity Universal Insurance Companies, 35 S.W.3d 278, 282 (Tex.App.-El Paso 2000, no pet.) to support its argument that there is no causal nexus is also misplaced. In State and County Mutual Fire Insurance Company, the court held that allegations that a plaintiff was struck by an unrelated third-party vehicle while fleeing a stopped covered vehicle did not invoke a duty to defend under an automobile policy. As the court noted, under the facts alleged in the petition, the plaintiff “was not struck by or pushed from the [covered] vehicle, she did not fall from it, and she was not injured in it.” Id. at 282. By contrast, in this case, Escobar’s pleading alleges that he was not only injured while riding as a passenger inside of an automobile covered by the policy at issue but it was in operation at the time of the accident.

Does the Policy’s “Mechanical Device” Exclusion Apply to Escobar’s Claims?

Hartford also argues that it owed no duty to defend either Continental or AccuFleet because the mechanical device exclusion in the policy applies. This exclusion provides, in pertinent part, that “[t]his insurance does not apply to ... ‘[bjodily injury’ or ‘property damage’ resulting from the movement of property by a mechanical device (other than a hand truck) unless the device is attached to the covered ‘auto.’ ” Specifically, Hartford asserts the Escobar accident “clearly resulted from the use of a mechanical device [ground tug] that was transporting property (i.e., luggage stacked on the luggage cart.)”

Even assuming, arguendo, that Hartford is correct in asserting that the ground tug is a mechanical device subject to the exclusion, Escobar’s pleading does not allege only that he was injured because of the operation of a ground tug. The pleading also alleges that Escobar sustained personal injuries because of the negligent, careless, and reckless use by an AccuFleet employee of an auto owned by AccuFleet, a claim that, if true, may be covered. These facts alleged in the pleading do not clearly place this case outside of the coverage of the policy. Thus, Hartford had a duty to defend the entire suit as to Accu-Fleet. Zurich Am., 268 S.W.3d at 491. Was AccuFleet Named in the Escobar Lawsuit For Discovery Purposes Only?

Hartford argues that, even if Es-cobar’s injuries were the result of the use of AccuFleet’s covered vehicle, it still does not owe a duty to defend AccuFleet because AccuFleet is a defendant in the lawsuit for discovery purposes only. This argument ignores the entirety of Escobar’s pleading in this case. Although Escobar states in the second count of his pleading that AccuFleet is a named defendant for discovery purposes only and “no claim for monetary damages is being asserted at this time,” he also clearly states in each of his five counts, including count two, that he seeks to hold AccuFleet hable for damages and recover those damages from Ac-cuFleet. We hold that this pleading is sufficient to trigger AccuFleet’s duty to defend AccuFleet in the Escobar lawsuit. See Heyden Newport Chem. Corp. v. S. Gen. Ins. Co., 387 S.W.2d at 26 (“Where the complaint does not state facts sufficient to clearly bring the case within or without the coverage, the general rule is that the insurer is obligated to defend if there is, potentially, a case under the complaint within the coverage of the policy.”).

Does Hartford’s Duty to Defend Cover Voluntary Settlement Payments?

Finally, in a sub-argument, Hartford argues that summary judgment in its favor should be affirmed because any money AccuFleet paid to settle Escobar’s claims on behalf of Continental amounts only to an excluded voluntary payment, rather than damages AccuFleet was obligated to pay. Hartford argues that, as a matter of law, it is not obligated to provide a duty to defend under these circumstances. However, Hartford did not move for summary judgment on this ground. The trial court’s summary judgment may be affirmed only on a ground expressly stated in Hartford’s motion. See Tex.R. Civ. P. 166a(c); Stiles v. Resolution Trust Corp, 867 S.W.2d 24, 26 (Tex.1993). Because Hartford did not move for summary judgment on the ground that AccuFleet’s settlement of the Escobar lawsuit was an excluded voluntary payment, Hartford’s argument is not properly before this court. Id.

Under the Terms of the Policy, Does Hartford Owe Continental a Duty to Indemnify?

In its second issue, AccuFleet ar-. gues that the trial court erred in finding that Hartford was not required to indemnify Continental for the payments Continental made to settle the Escobar lawsuit. However, as we held above, under the facts alleged in the Escobar pleading, Continental does not qualify for coverage under AccuFleet’s policy. Accordingly, we hold that Hartford is not required to indemnify Continental for payments made to settle the Escobar lawsuit and the trial court did not err in granting summary judgment on Continental’s breach of contract claim in favor of Hartford on this basis.

Conclusion

For the foregoing reasons, we affirm the judgment of the trial court in favor of Hartford regarding Hartford’s duty to defend and indemnify Continental. We reverse the judgment of the trial court in favor of Hartford regarding Hartford’s duty to defend AccuFleet and remand this case for further proceedings consistent with this opinion.

      . AccuFleet also sued its insurance agent, AON Risk Services of Texas, but those claims were settled before the trial court entered a final judgment in this case.

      . On page 1, the policy states that "[tjhrough-out this policy the words 'you' and 'your' refer to the Named Insured shown in the Declarations.” The named insureds are AccuFleet, Inc.; AccuFleet International, Inc.; AccuFleet Testing Services, Inc.; and Sida Systems, Inc.

      . The petition provides in part:
      1. On or about January 26, 2003, plaintiff Gonzalo Escobar was a passenger in a vehicle driven by defendant LUIS O. HERMO-SA and owned by defendant ACCUFLEET INTERNATIONAL, which vehicle was stopped at a stop sign in the property commonly known as NEWARK INTERNATIONAL AIRPORT, when said vehicle was struck in the rear of a vehicle operated by defendant JAMES C. LAWRENCE, JR., and owned by defendant CONTINENTAL AIRLINES.
      2. At the aforesaid time and place, defendants aforesaid, so negligently, carelessly and recklessly operated and/or entrusted their respective vehicles so as to cause the subject collision.

      3. As a direct result of the negligence of the defendants aforesaid, the plaintiff GONZALO ESCOBAR, was seriously and permanently injured, suffered and in the future will experience great pain and suffering, did and in the future will be required to expend large sums of money for medical care and attention, and have been and will be in the future disabled and prevented from attending to his necessary affairs and business.
      6 [sic]. As a direct and proximate result of the aforesaid negligence of the defendants aforesaid, the plaintiff, GONZALO ESCO-BAR, has sustained a personal injury resulting in one or more of the following:
      a. death;
      b. dismemberment;
      c. significant disfigurement;
      d. displaced fracture;
      e. A permanent injury within a reasonable degree of medical probability.

      . At the conclusion of the first and second counts Escobar alleges as follows: "WHEREFORE, plaintiff GONZALO ESCOBAR, demands judgment against the defendants, JAMES C. LAWRENCE JR., CONTINENTAL AIRLINES, LUIS O. HERMOSA, ACCU-FLEET INTERNATIONAL, jointly, severally or in the alternative, for damages, interest and costs of suit, or other relief that the Court deems just.”
      At the conclusion of the third, fourth and fifth counts Escobar alleges as follows: "WHEREFORE, plaintiff GONZALO ES-COBAR, demands judgment against the defendants, JAMES C. LAWRENCE JR., CONTINENTAL AIRLINES, LUIS O. HER-MOSA, ACCUFLEET INTERNATIONAL, and JOHN DOES 1-100 (names being fictitious) jointly, severally or in the alternative, for damages, interest and costs of suit, or other relief that the Court deems just."