author: KAREN ANGELINI, Justice.

text:
    Brian Pak CYR, Appellant, v. The STATE of Texas, Appellee.
    No. 04-08-00771-CR.
    Court of Appeals of Texas, San Antonio.
    Dec. 16, 2009.

      Lori 0. Rodriguez, Chief Public Defender, San Antonio, TX, for Appellant.
    Enrico B. Valdez, Assistant Criminal District Attorney, San Antonio, TX, for Appellee.
    Sitting: CATHERINE STONE, Chief Justice, KAREN ANGELINI, Justice, MARIALYN BARNARD, Justice.
   OPINION

Opinion by:

KAREN ANGELINI, Justice.

Brian Pak Cyr was found guilty of murdering Corey Baxter and was sentenced to imprisonment for ninety-nine years and a $10,000 fine. On appeal, Cyr argues that (1) he suffered egregious harm from the trial court’s failure to instruct the jury that the witness Dane Batterton was an accomplice as a matter of law; (2) the trial court erred in denying his request for juror information; and (3) the trial court erred in failing to hold a hearing on his motion for new trial. We affirm.

BACKGROUND

In the early morning hours of March 5, 2007, Corey Baxter was brought to the garage of a house on Chelmsford Street in San Antonio, Texas. He was then severely beaten by several different individuals. He was hit over the head with a baseball bat and a brick, which caused him to suffer severe head injuries. Baxter was hog-tied and wrapped in a rug and blanket. Dane Batterton, who had been beaten in the same garage earlier after being accused by Cyr and others of stealing from a woman, was then called into the garage from the house, handed a gun, and told to shoot Baxter in the head. Batterton picked up the gun and shot Baxter. Batterton testified that he did so only because he was afraid that he would “end up in the same spot Corey’s in.” Batterton then handed the gun back and left the garage.

One of the individuals in the garage recorded video images and photos on a cell phone that Batterton later identified as one he had given Cyr. The video clips each last about fifteen seconds. The first one shows Baxter walking into the garage, surrounded by several people, and then being hit in the face, causing blood to run down his cheek. One video clip shows a man standing behind Baxter, holding something similar to a baseball bat. The man appears to be about to swing the bat toward Baxter. Another video clip shows Baxter lying on the garage floor, bloodied, and with severe injuries to his head. Yet another video clip shows individuals hogtying Baxter and wrapping him in a rug. Still another video clip shows a blanket shoved in Baxter’s mouth as “duck” tape is being wrapped around Baxter’s head and blanket. Cyr’s voice can be heard on the video clips.

Clifford Vansycke, an accomplice witness, testified that he was frequently called by Cyr and others to help them “discipline” certain individuals and considered himself, at 6' 4" and 330 lbs., to be “the unofficial enforcer of the group.” On the day of the murder, Vansycke was using crystal methamphetamines with Rudy Hettler, Bobby Cruz, Terry Adams, and a few others. According to Vansycke, Adams told him that Corey Baxter “had confided in him [Adams] that he [Baxter] was hired by ... Rudy Hettler to take out Bobby Cruz.” About forty-five minutes later, Vansycke saw Adams talking with both Hettler and Cruz. According to Van-sycke, Adams was “telling them the story.” Vansycke testified that both Hettler and Cruz were upset:

We’re all a group of friends. We all hung out together. We all did dope together. We all did a lot of things together. But all of a sudden now one guy is claiming that he’s supposedly— you know, supposedly some — one person is supposed to be taking out another person. That’s just not what happens with friends. That’s not supposed to happen with friends.

According to Vansycke, “[t]here was talk about — about disciplining [Baxter].” When Vansycke, Hettler, and another man named Justin Berban got to the house on Chelmsford, Corey Baxter and Lupe Villarreal were standing at the front door of the house. John Boyer opened the door, and everyone went straight to the garage because “[t]hat’s where we always hung out.” On* his way to the garage, he noticed Batterton in the living room. According to Vansycke, Batterton looked like he had been beaten: one of his eyes and his cheeks were swollen.

Cruz, Michael Yaws, and Yaws’s girlfriend Michelle were already in the garage. Cyr then came in with a large group of people. Vansycke testified that at that point, he thought that they were going to “discipline” Baxter and that he was going to be the person to do it:

Well, I started circling around. I guess it’s right at the point I was getting ready to start hitting on [Baxter] ... when the door opened up and in walked [Cyr] and everybody else. That’s when the whole group showed up. And at that point, that’s when I decided I didn’t need to have anything to do with this. I went ahead — you know, I had taken my jacket off, taken my shirt off. I was in a tank top. I was — like to — getting ready to beat on him. When everybody walked in, I was like, no, no. This ain’t me. I’m not going to do anything. I’m not going to touch this dude ... I’ve been around. I’ve seen what happens when groups get into a frenzy.... And I didn’t feel that was necessary. I mean, one person beating up on a guy ... I mean, he wasn’t a very big guy. That’s one thing. But a whole group beating up on him? Wasn’t needed.

According to Vansycke, the first person he saw hit Baxter was Villarreal. Villarreal hit Baxter on his right cheek. As Van-sycke was putting his shirt back on, he saw “Bobby Cruz pick up a baseball bat.” Vansycke heard the hit and turned to see Baxter on the ground. “It sounded kind of like a golfball being struck.” According to Vansycke, Baxter was looking at him with his eyes “glazed over” — “the lights were on but no one was home.”

From the video clips, Vansycke identified Cyr as the person with black clothing, yellow shirt, and white shoes. Vansycke testified that a voice heard on the video clips belonged to Cyr. According to Van-sycke, on the video clips, Cyr made the following audible statements: “You’re a bitch, bro”; “It’s not between you and him”; “Tony Montana, say hello to my little friend”; and “Hey, look at me, bitch. We spit on our enemies.” Vansycke also testified that a still from one of the video clips depicts Cyr’s hands in latex gloves holding a rope.

According to Vansycke, when Michael Yaws started hog-tying Baxter, he and Hettler left. Vansycke also testified that one of the video clips shows Cyr with his left foot on Baxter’s head as Yaws is tying Baxter up.

Vansycke testified that a few hours after he and Hettler had left the house on Chelmsford, they returned because they had Justin Berban’s truck and Berban had called saying he was hungry. Vansycke went into the garage and gave Berban a hamburger. When he went into the garage, Vansycke noticed that Baxter had been moved from right by the door leading to the house to the big garage door. According to Vansycke, Baxter was on a “carpet or tarp or something” and looked significantly worse, but was still alive. Besides the bat, Vansycke thought that a brick in the garage had been used on Baxter:

I had been asked to hold another video — a little video recorder. And on it, it showed Michael Yaws throwing that brick. Winding up and then throwing it directly at his face. And [Baxter] was already on the ground. I mean, he was tied up. There was no way he could come close to defending himself.

According to Vansycke, Hettler asked him to hold on to the recording “as insurance” for a little while. He then left with Hett-ler, Berban, and Cruz.

Baxter’s body, still hog-tied and wrapped in rugs, was later discovered in a lot next door to a fruit stand. Cyr, along with many others, was indicted for Baxter’s murder. Cyr was confined in jail pending his trial, and his former cellmate, Billy Schaef, testified at trial. According to Schaef, Cyr told him about Baxter’s murder. Cyr said that Hettler used a blow torch on Baxter; Cruz used a baseball bat; and Batterton shot Baxter. Cyr said that he made Batterton shoot Baxter:

[Cyr] said that he went and got the gun from Bobby [Cruz]. He gave [Cruz] a hug. He pulled the gun out of [Cruz’s] pocket. [Cruz] didn’t know [Cyr] got the gun, but [Cyr] pulled the gun out of [Cruz’s] pocket. [Cyr] said he went back into the garage, pulled out his gun, put that gun on the thing and told Dane [Batterton], “You shoot him. And if you don’t shoot him, you’re not leaving this garage.” Dane [Batterton] picked up the gun, shot [Baxter], put the gun down and said, “Can I go?”

Schaef testified that the gun Batterton used was later found on Cruz and that Cruz did not know his gun had been used to shoot Baxter.

At trial, the medical examiner testified that Baxter died as a result of a blunt-force injury to his head and neck, and a gunshot wound to his head. According to the medical examiner, she could not distinguish whether it was the blunt-force injury or the bullet wound that caused Baxter’s brain injury. The medical examiner testified that a gunshot wound to the brain is usually bloodier than Baxter’s was, which indicated that Baxter had very low blood pressure and had maybe even been in physiologic shock before he was shot.

At trial, Cyr was found guilty of murder. He now appeals.

Accomplice as a MatteR of Fact OR as a Matter of Law?

Cyr argues that the trial court erred in failing to instruct the jury that Dane Bat-terton was an accomplice as a matter of law. With respect to Batterton, the trial court instructed the jury that it should determine whether Batterton was an accomplice:

Now, if you believe from the evidence beyond a reasonable doubt that an offense was committed and you further believe from the evidence that the witness, Dane Batterton, was an accomplice, or you have a reasonable doubt whether he was an accomplice, as that term is defined in the foregoing instructions, then you cannot convict the defendant upon the testimony of Dane Bat-terton unless you first believe that the portion of the testimony of Dane Batter-ton [that] ascribes guilt to the defendant is true and that it shows the defendant is guilty as charged in the indictment; and even then you cannot convict the defendant unless you further believe that there is other evidence in the ease, outside of the evidence of Dane Batter-ton, tending to connect the defendant with the commission of the offense charged in the indictment, and then from all the evidence you must believe beyond a reasonable doubt that the defendant is guilty.

Because Cyr failed to object to the charge, to be entitled to reversal of the judgment, Cyr must show that an erroneous charge resulted in egregious harm. Druery v. State, 225 S.W.3d 491, 504 (Tex.Crim.App.), cert. denied, 552 U.S. 1028, 128 S.Ct. 627, 169 L.Ed.2d 404 (2007).

“One who participates with the defendant before, during or after commission of the crime for which the defendant is on trial is an accomplice as a matter of fact.” Ex parte Zepeda, 819 S.W.2d 874, 875-76 (Tex.Crim.App.1991) (emphasis added); see Cocke v. State, 201 S.W.3d 744, 748 (Tex.Crim.App.2006) (“An accomplice is an individual who participates with a defendant before, during, or after the commission of the crime and acts with the requisite culpable mental stated.”), cert. denied, 549 U.S. 1287, 127 S.Ct. 1832, 167 L.Ed.2d 332 (2007). One who is indicted for the same offense with which the defendant is charged, or indicted for a lesser-included offense based upon alleged participation in commission of the greater offense, is an accomplice as a matter of law. Id. at 876. A witness is also an accomplice as a matter of law when the evidence is uncontradicted or so one-sided that a reasonable juror could not disagree with the determination that the witness is an accomplice. See Silba v. State, 161 Tex.Crim. 135, 136, 275 S.W.2d 108, 109 (1954) (explaining that (1) if all the evidence shows that the witness is answerable to the law as a principal or accomplice to the crime or if he has been indicted as such, then he is an accomplice witness as a matter of law; (2) if there is a conflict in the evidence, then the question of whether the witness is an accomplice should be submitted to the jury; and (3) if there is not sufficient evidence to support a charge against the witness as either a principal or accomplice, then he is not an accomplice witness). Thus, when the evidence clearly shows that the witness is an accomplice witness as a matter of law, the trial court has a duty to so instruct the jury. See Druery, 225 S.W.3d at 498. However, if the evidence presented by the parties is conflicting and there is doubt about whether a witness is an accomplice, the trial court has no duty to instruct the jury that a witness is an accomplice witness as a matter of law. See id. Instead, the trial court “should allow the jury to decide whether the inculpatory witness is an accomplice witness as a matter of fact under instructions defining the term ‘accomplice.’ ” Id. at 498-99. And, if there is doubt about “whether a witness is an accomplice witness, the trial court may submit the issue to the jury even though the evidence weighs in favor of the conclusion that the witness is an accomplice as a matter of law.” Kunkle v. State, 771 S.W.2d 435, 439 (Tex.Crim.App.1986).

We cannot say from the record before us that the evidence without doubt shows that Batterton was an accomplice witness as a matter of law or that the jury was unreasonable in concluding that Batterton was not an accomplice witness. See Arney v. State, 580 S.W.2d 836, 839 (Tex.Crim.App.1979) (holding that the trial court did not err because the evidence did not show without doubt that the witness was an accomplice witness as a matter of law or that jury was unreasonable in concluding that witness was not an accomplice), abrogated in part on other grounds by Giesberg v. State, 984 S.W.2d 245 (Tex.Crim.App.1998); Gallardo v. State, 281 S.W.3d 462, 470 (Tex.App.-San Antonio 2007, no pet.) (holding (1) because the witness was not charged and the evidence did not clearly show that she could have been indicted for the same offense, she was not an accomplice as a matter of law, and (2) the trial court properly instructed the jury to decide whether the witness was an accomplice witness because although there was some evidence the witness may have committed an act that promoted the commission of one of the offenses, a reasonable jury could have found that the witness did not participate in, solicit, encourage, direct, or aid in the commission of the offenses, or did not do so with the required intent). First, Batterton was not charged with murder or any lesser-included offense. Second, although Batterton admitted that he shot Corey Baxter in the head, he claimed that he did so because he feared for his own safety and that of his family. When a witness claims his complicity in a crime was due to coercion or duress, a factual question is presented for the jury regarding whether the witness is an accomplice. See Mario v. State, 720 S.W.2d 496, 500 (Tex.Crim.App.1986) (“[I]f a State’s witness implicates himself, his statement that his participation was compulsory raises the issue of fact as to whether his testimony is or is not that of an accomplice witness.”) (quoting Easter v. State, 536 S.W.2d 223, 226 (Tex.Crim.App. 1976)); State v. Trevino, 930 S.W.2d 713, 715 (Tex.App.-Corpus Christi 1996, pet. ref'd) (recognizing that “while it is true that a -witness who claims his complicity in a crime was due to coercion or duress is not necessarily an accomplice,” coercion or duress did not apply to the facts of the case because coercion or duress must include “force or threat of force”); Alexander v. State, No. 01-98-00506-CR, 1999 WL 977815, at *4 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd) (holding that the trial court did not err in failing to instruct the jury that the witness was an accomplice as a matter of law because whether a witness “acted under duress, and therefore whether he was an accomplice, was a fact question”) (not designated for publication).

Here, Batterton testified that on March 4, 2007, he was twenty-five years old and had been using methamphetamine since he was fifteen years old. He had been living with an older woman named Jean Ball and other people who also used methamphetamine. According to Batterton, “[i]t was kind of like an open door type of thing.” Batterton testified that on the morning of March 4, 2007, Jean’s laptop, $800 in cash, and a couple of digital cameras were missing, which made Jean upset and caused her to spend a couple of hours looking for them. Batterton had to leave to pick up his daughter, but he told Jean before he left that he did not take anything and asked her not to believe he had because he was leaving. Late that night at about 2:00 a.m., Batterton was at a friend’s apartment sitting on the couch after smoking marijuana when he heard a knock on the door. His friend answered the door and then told Batterton some people where there for him. Batterton testified that Cyr, John Boyer, and J.C. were at the door and began asking him about Jean’s missing computer, cash, and cameras. Cyr wanted to know where Jean’s belongings were and told Batterton that he had “stole from the wrong lady.” Cyr, Boyer, and J.C. took Batterton to the house on Chelmsford and escorted Batterton into the garage. Telling Batterton that he was a bad guy and had stolen from a crippled old lady, the men, who had now been joined by Lupe Villarreal, began beating Batterton with their fists and kicking his head. Michael Yaws then came into the garage with another man. Cyr told Yaws that Batterton had stolen from a little old lady. According to Batterton, Yaws “is carrying like some kind of — at one point he brought some kind of like metal pole inside a wooden stick.” “Sometime shoz-tly after that, guns start to appear,” and “[tjhings are starting to get a little more intense.” Somebody raised Batterton’s arm above his head so Yaws “could take a few good shots at [his] rib cage.” Batterton was then “hit over the back of the head with something [he didn’t] think was a fist, but [he] didn’t see it coming and [he] hit the floor.” Bobby Cruz appeared at one point and took turns with someone else hitting Batterton. When Batterton was lying on the floor, Yaws’s girlfriend said, “He doesn’t look like he’s going to take much more of this.” “[T]hat’s when they decided to tie [Batterton’s] hands behind [his] back, feet tied together, and then tie those together ... hog-tied.” Batterton testified that Cyr then put a gun to his head and threatened him:

It was — the thing that came out of it was — well, since — because I don’t have the computer, and I don’t have the money, and I don’t have the cameras, and they had to put in work to come get me and beat me up and do all this stuff, that I owe each one of those guys [who were] there $500, plus the money for the computer, which is about a thousand dollars. And it came to a total of $5,000.

Cyr told Batterton that if he did not come up with $5,000 in twenty-four hours, he “was dead.”

John Boyer then took Batterton upstairs to clean up and take a shower. Batter-ton’s shirt and jeans had his blood all over them, so they took his clothes and gave him some clean clothes. They then put Batterton on the couch downstairs, telling him to start working on coming up with $5,000. Batterton thought about escaping, but decided not to because he did not know the area very well, it was the middle of the night, he had no money and no phone, and even if he ran out of the home, he did not have a ride. Batterton testified, “I don’t have any way to get out of that part of town, and I’m going to be found and it’s going to be even worse.” Further, according to Batterton, he was also in and out of consciousness from his head injuries. After sleeping for about three hours, he called his daughter’s mother who said she would try to find him some money. Bat-terton called his father who said he would not help. Yaws then took Batterton to a grocery store and told him to fraudulently cash a money order:

[T]he people just looked at me at the customer service center at [the grocery store] like I was an idiot. I’m beat up and bruised, and with an I.D. that’s not mine — yoit can tell it’s not me — trying to cash a money order. So, that’s not working at all.

Batterton then remembered that a friend owed him money, so Cyr took Batterton to the friend’s house. The friend gave Bat-terton a phone with six months or a year’s worth of service on it. Batterton asked Cyr if he would take the phone in lieu of some of the money owed. Cyr said that he would deduct $500 from the total amount owed. This phone was the one that was found by police and contained images of Baxter being beaten.

Cyr then took Batterton to a hotel room where Bobby Cruz asked him how he was going to get the rest of the money. Bat-terton eventually ended up back on the couch at the Chelmsford house in the early evening hours of March 5, 2007. Cyr, Villarreal, Hettler, John Boyer, Yaws, and Yaws’s girlfriend were in the garage. At some point, Batterton saw Baxter and Cruz come into the house and head straight for the garage. Batterton testified that he was the only one in the house, but every once in a while someone would come in from the garage to see what he was doing. Batterton then fell asleep on the couch. When he awoke, he wanted a cigarette and walked towards the garage door. As he was getting close to the door, it opened and Villarreal came in and told him that he could not go into the garage. Batterton heard raised voices coming from the garage. He asked Villarreal if he could have a cigarette. Villarreal went back into the garage and got Batterton a cigarette. Batterton then smoked a couple of cigarettes on the back porch and went back to sleep on the couch.

Batterton testified that he did not leave the house because even though someone was not “keeping a direct eye on [him] at that point,” he was completely out of options. He did not want to bring any more harm to anyone else and did not want his family involved: “At this point, I’ve already involved my mom, my dad, my daughter, my daughter’s mom, and I didn’t want it to go any further.”

Batterton was awakened by Villarreal who told him to come into the garage. According to Batterton, when he stepped into the garage, he saw blood everywhere and Baxter lying on the ground being rolled into a carpet by Villarreal and Yaws. Batterton testified that he could hardly recognize Baxter because there was blood all over his beaten face. Baxter was not talking, but was making gurgling sounds like he could barely breathe. Cyr, with a gun on his lap, was sitting on a bench seat that had been removed from a Suburban or van and was giving directions, “like he was the boss telling his employees what to do.” Batterton testified that Cyr then told Yaws to give the gun to Batterton because Batterton was going to shoot Baxter. Bat-terton thought to himself, “I better do it or I’m — I’m not going to make it out of this garage.” Villarreal was “holding the carpet up at an angle and like squeezing around where [BaxterJ’s head [was] ... to get him to stop making those noises.” Yaws pointed to a box of gloves and told Batterton to put one on in case blood sprayed out. Batterton put on one of the latex gloves, but Cyr told him to take the glove off because he wanted Batterton “to feel it.” Yaws had the gun in his hand and told Batterton to come over there. Yaws put one bullet in the chamber. Batterton grabbed the gun and stuck his hand “towards the opening of the carpet where [he] assumed [Baxter’s head was.” Yaws then grabbed his hand and pushed it further down. Batterton then pulled the trigger, and the gun fired. Batterton turned around, and Cyr had this “grin on his face — kind of looked like, ‘Well, how did that make you feel? Did that — did it feel good?’ ”

And I sure wasn’t going to say, “Oh, no, it felt horrible.” Because I’m thinking if I’m going against what’s happening in this garage, I’m going to end up in the same spot he’s in, [Baxter]’s in. So rather than say anything, I just kind of shrugged. You know, like it wasn’t anything to me. That’s not how I felt.

Batterton testified that he shot Baxter because he “didn’t want to end up next to him in the same position.” Batterton later helped Cyr, Villarreal, and Yaws load Baxter’s body into the Suburban. Cyr, Villarreal, and Yaws discussed where to leave the body, and Cyr said, “I’ve got a spot.” They then left, and someone stayed to watch Batterton. After about ten minutes, Cyr, Yaws, and Villarreal returned to the house:

At that point, the sun is starting — it’s real early in the morning.... Nobody has money for gas; nobody has money for drugs; nobody has money for anything. So the day’s going to be, again, about me getting this money. And [I] went to [a store] once, I think, to try to cash one of them money orders. Just anything to get the money is basically what [I] was being told. You know, scam [the store], cash a bad money order, whatever the case may be, till that evening.

Then, according to Batterton, they took him to a shopping center where they said that someone was going to meet them. Batterton’s friend, Travis, and another man, Dan, met them at the shopping center. Batterton testified that Dan was the one who had stolen the computer. Yaws and Villarreal went with Dan to get Jean Ball’s computer. Cyr, J.C., and Batterton returned to the house to wait:

And at that point ... I’m off the hook because they figured out that Jean had just kind of revved up their engine and got them going, thinking I stole something that I didn’t steal. So now their— their view of it now is that I don’t owe them money; Jean should pay them because Jean had them go do some stuff that they didn’t really have to do.

Everyone then went to Jean Ball’s house to give her the computer back. Cyr and Yaws told Jean that she owed them money for their trouble. Afterwards, Cyr and Yaws apologized to Batterton for beating him up and asked him if he wanted to “hang out.” Batterton had talked to his daughter’s mother, who had told him that she would pay for a bus ticket for him to come to Houston. His daughter’s grandmother, who lived in San Antonio, then picked him up and drove him to the bus station.

Under Batterton’s version of events, he shot Baxter under duress. He had been beaten, hog-tied, and told, with a gun to his head, that if he did not come up with $5,000 within twenty-four hours he would be killed. He then saw Baxter come into the same house and go into the same garage where Batterton had been beaten earlier. Later when Batterton was called into the garage, Baxter was lying on the floor and being rolled into a carpet. He was bloodied, also hog-tied, and was making gurgling sounds. Cyr then ordered Batterton to shoot Baxter. Batterton testified that he shot Baxter because Cyr would have killed him if he did not do so. Whether Batterton acted under duress, as he testified, or whether he was an accomplice, was a fact question for the jury. Hence, the trial court did not err in failing to instruct the jury that Batterton was an accomplice as a matter of law.

Juror Information Cards and Motion for New Trial Hearing

In two separate issues, Cyr argues that the trial court erred in denying his request to review juror information cards and in denying his motion for new trial without conducting a hearing. We disagree.

After the trial, Cyr filed a motion for new trial and a motion to view juror information. Attached to Cyr’s motion for new trial was his counsel’s affidavit in which his counsel affirmed the following:

I was informed that one of the jurors in this case approached the media and alleged that she “was not comfortable with her verdict.” I confirmed the information with a representative of the media who substantiated that the information was true. Additionally, I was informed that the juror believed that the defendant was not guilty but later changed her verdict during jury deliberations for an unknown reason. A hearing is necessary to determine if that individual juror’s verdict was changed for any reason contrary to the instructions of this Court or law. Such a verdict would therefore not be a fair expression of that juror’s opinion.

Emphasizing the information contained within his counsel’s affidavit, Cyr argued in his motion for new trial that the jury’s verdict was decided in a manner other than a fair expression of a juror’s opinion. In his request to view juror information, Cyr argued that he needed the juror information cards “to fully identify the juror and confer with the juror, if she is willing to communicate with counsel.” According to Cyr, “[t]he communication with the jury is necessary for counsel to determine if any reversible error occurred and if anew trial may be necessary.” The trial court denied both motions without holding a hearing.

Article 35.29 of the Texas Code of Criminal Procedure prohibits personal information about jurors from being disclosed after trial unless good cause is shown. See Tex.Code Crim. Proc. Ann. art. 35.29 (Vernon Supp. 2009). “On a showing of good cause, the court shall permit disclosure of the information sought.” Id. Here, Cyr failed to show good cause. In his request for disclosure, Cyr argued that a juror had told a member of the media that she “was not comfortable with her verdict,” and that the member of the media had been able to identify the juror only as “Lisa.” Thus, Cyr argued the “information contained on the juror’s information cards tendered to counsel at the time of voir dire is necessary for counsel to fully identify the juror and confer with the juror, if she is willing to communicate with counsel.” Such allegations, however, are not sufficient to show good cause.

What constitutes good cause must be based upon more than a mere possibility that jury misconduct might have occurred; it must have a firm foundation. Esparza v. State, 31 S.W.3d 338, 340 (Tex.App.-San Antonio 2000, no pet.). That a juror was “uncomfortable” with her verdict does not constitute a firm foundation that jury misconduct occurred. See Castellano v. State, No. 04-06-00524-CR, 2007 WL 2935399, at *3 (Tex.App.-San Antonio 2007, no pet.) (holding that defendant had “reason to believe” juror misconduct had occurred was not sufficient to show good cause); Garza v. State, No. 04-02-00599-CR, 2003 WL 23008845, at *10 (Tex. App.-San Antonio 2003, pet. refd) (holding that testimony of defendant’s mother that juror was distant relative of defendant and was prejudiced against him was insufficient to show good cause because mother also admitted that she could not remember juror’s first name, did not know how juror was related to defendant, and had no personal knowledge of the juror’s feelings toward defendant). Therefore, the trial court did not err in denying Cyr’s request for juror information.

Cyr also argues that the trial court erred in denying his motion for new trial without holding a hearing. We review the trial court’s denial of a hearing on a motion for new trial for abuse of discretion. Smith v. State, 286 S.W.3d 333, 339 (Tex.Crim.App.2009).

The purpose of a hearing on a motion for new trial is to (1) decide whether a cause should be retried and (2) prepare a record for presenting appellate issues if the motion is denied. Id. at 338. Such a hearing is not an absolute right and is not required when the matters raised in the motion for new trial are determinable from the record. Id. Here, Cyr has alleged juror misconduct, which is a matter not determinable from the record. However, even though Cyr has raised a matter not determinable from the record, because requiring a hearing on all matters not determinable from the record could lead to “fishing expeditions,” he would not be entitled to a hearing on his motion for new trial unless he established the existence of “reasonable grounds” showing that he could be entitled to relief. Id. at 339.

Because Cyr must show reasonable grounds exist for a new trial, as a prerequisite to a hearing, his motion had to be supported by an affidavit, either of himself or someone else, specifically setting out the factual basis for the claim. Id. The affidavit need not establish a prima facie case, or even reflect every component legally required to establish the relief requested. Id. “It is sufficient if a fair reading of it gives rise to reasonable grounds in support of the claim.” Id.

The State argues that the affidavit in support of Cyr’s motion for new trial, affirmed by Cyr’s counsel, is insufficient because it does not reflect that Cyr’s counsel had personal knowledge and was instead based on hearsay. “It is well established that a motion for new trial complaining of jury misconduct must be supported by the affidavit of a juror, or some other person who was in a position to know the facts, or must state some reason or excuse for failing to produce the affidavits.” Baldonado v. State, 745 S.W.2d 491, 493 (Tex.App.-Corpus Christi 1988, pet. ref'd) (emphasis added); see also Dugard v. State, 688 S.W.2d 524, 528 (Tex.Crim.App.1985), overruled on other grounds by Williams v. State, 780 S.W.2d 802 (Tex.Crim.App.1989); Bearden v. State, 648 S.W.2d 688, 690 (Tex.Crim.App.1983). Counsel’s affidavit does not reflect that he was in a position to know the facts. Instead, his affidavit affirms that a member of the media told him that a juror had told him that she was “uncomfortable” with the verdict. Thus, the affidavit was deficient, and the trial court did not err in failing to hold a hearing. See Jordan v. State, 883 S.W.2d 664, 665 (Tex.Crim.App.1994) (holding that because affidavit was conclu-sory in nature and thus deficient, motion for new trial was not sufficient to put trial court on notice that reasonable grounds existed).

Moreover, even if the affidavit had been sufficient, the trial court still did not err in failing to hold a hearing because the affidavit did not establish the existence of reasonable grounds showing Cyr could be entitled to relief based on jury misconduct. See Smith, 286 S.W.3d at 339. To demonstrate jury misconduct, a defendant must show that (1) the misconduct occurred and (2) the misconduct resulted in harm to the movant. Jennings v. State, 107 S.W.3d 85, 90 (Tex.App.-San Antonio 2003, no pet.). The affidavit at issue here merely states that a juror “was not comfortable with her verdict” and that said juror “believed that the defendant was not guilty but later changed her verdict during jury deliberations for an unknown reason.” Being uncomfortable with the verdict and changing your vote during jury deliberations for an unknown reason does not establish that reasonable grounds existed for Cyr to be entitled to a new trial based on jury misconduct. Therefore, the trial court did not err in denying Cyr’s motion for new trial without holding a hearing.

' Conclusion

We affirm the judgment of the trial court.

      . Vansycke also testified that Cruz was upset with Baxter because he believed Baxter was the reason his little brother had been beaten by some other gang members.

      . Pursuant to section 8.05 of the Texas Penal Code, an actor who commits a criminal offense under duress has an affirmative defense to prosecution. See Tex. Penal Code Ann § 8.05(a) (Vernon 2003). One acts under duress if he “engaged in the proscribed conduct because he was compelled to do so by threat of imminent death or serious bodily injury to himself or another.” Id.


source: Caselaw Access Project

author: SANDEE BRYAN MARION, Justice.

license: Public Domain

text:
    In re Nino SANDOVAL.
    No. 04-09-00649-CV.
    Court of Appeals of Texas, San Antonio.
    Dec. 18, 2009.

      Adam Cardenas, Jr., Andrea Hernandez, Law Offices of Adam Cardenas, Jr., San Antonio, TX, for Appellant.
    Manuel C. Rodriguez, Jr., Law Office of Manuel C. Rodriguez, Jr., Stephanie Wilke, Attorney at Law, San Antonio, TX, for Appellee.
    Sitting: CATHERINE STONE, Chief Justice, SANDEE BRYAN MARION, Justice, MARIALYN BARNARD, Justice.
   OPINION

Opinion by:

SANDEE BRYAN MARION, Justice.

On July 1, 2009, in the underlying proceeding, relator, Nino Sandoval, filed a motion to modify final orders in a suit affecting the parent-child relationship of his two children. The next day, Sandoval and his twelve-year-old son appeared in the law offices of Sandoval’s attorney at which time the child signed a Choice of Managing Conservator By Child 12 Years or Older (“the Choice Document”), in which the child asked that his father serve as managing conservator. Sandoval’s attorney, Adam Cardenas, Jr., notarized the document. That same afternoon, Sandoval filed an amended motion attaching the Choice Document. A jury trial was set to commence on August 10, 2009. On that date, Sandoval’s former wife, Olivia Allen, filed a motion to disqualify Cardenas.

Allen’s motion to disqualify Sandoval’s attorney was based on a single ground: because Cardenas notarized the Choice Document, he is a fact witness in the case, and, therefore, under State Bar Rule of Professional Conduct 3.08, he cannot serve as attorney of record. After a hearing on the motion, at which only Cardenas testified, the trial court granted the motion. In this mandamus proceeding, Sandoval asserts the trial court abused its discretion in doing so. Mandamus is appropriate to correct an erroneous order disqualifying counsel because there is no adequate remedy by appeal. In re Sanders, 153 S.W.3d 54, 56 (Tex.2004) (orig. proceeding).

ANALYSIS

Rule 3.08 was “promulgated as a disciplinary standard rather than one of procedural disqualification, but [courts] have recognized that the rule provides guidelines relevant to a disqualification determination.” Id. The rule provides as follows,

A lawyer shall not ... continue employment as an advocate before a tribunal in a ... pending adjudicatory proceeding if the lawyer knows or believes that the lawyer is or may be a witness necessary to establish an essential fact on behalf of the lawyer’s client, unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony;
(3) the testimony relates to the nature and value of legal services rendered in the case;
(4) the lawyer is a party to the action and is appearing pro se; or
(5) the lawyer has promptly notified opposing counsel that the lawyer expects to testify in the matter and disqualification of the lawyer would work substantial hardship on the client.

Tex. DisciplinaRY R. Prof’l Conduct 3.08(a), reprinted in Tex. Gov’t Code, tit. 2, subtit. Gapp. A (Tex. State Bar R. art. X, § 9).

Disqualification is a severe remedy because it can cause immediate harm by depriving a party of its chosen counsel and disrupting court proceedings. In re Sanders, 153 S.W.3d at 57. Courts must adhere to an exacting standard when considering motions to disqualify so as to discourage their use as a dilatory trial tactic. Spears v. The Fourth Court of Appeals, 797 S.W.2d 654, 656 (Tex.1990) (orig.proeeed-ing). The party moving for disqualification must establish with specificity a violation of one or more of the disciplinary rules. Id. Thus, mere allegations of unethical conduct or evidence showing only a remote possibility of a violation of the disciplinary rules are not sufficient to merit disqualification. In re Sanders, 153 S.W.3d at 57.

The fact that a lawyer serves as both an advocate and a witness does not, standing alone, compel disqualification. Id. Disqualification is only appropriate if the lawyer’s testimony is “necessary to establish an essential fact on behalf of the lawyer’s client.” Tex. Disciplinary R. Prof’l Conduct 3.08(a). Therefore, disqualification is inappropriate under Rule 3.08 when opposing counsel merely announces her intention to call the attorney as a fact witness without establishing a genuine need for the attorney’s testimony and that the testimony goes to an essential fact. In the Int. of A.M., 974 S.W.2d 857, 864 (Tex.App.-San Antonio 1998, no pet.). Also, the party moving for disqualification must show that the opposing lawyer’s dual roles as attorney and witness will cause the moving party actual prejudice. In re Sanders, 153 S.W.3d at 57; Ayres v. Canales, 790 S.W.2d 554, 558 (Tex.1990) (orig. proceeding). Without these limitations, the rule could be improperly employed “as a tactical weapon to deprive the opposing party of the right to be represented by the lawyer of his or her choice.” Tex. Disciplinary R. Prof’l Conduct 3.08 cmt. 10 (stating that lawyer “should not seek to disqualify an opposing lawyer by unnecessarily calling that lawyer as a witness”). For the reasons discussed below we conclude Allen did not meet the burden necessary to prevail on her motion to disqualify Sandoval’s attorney.

First, Allen did not establish that Cardenas’s testimony is necessary to establish an “essential fact” on Sandoval’s behalf. We agree the child’s choice of his father as managing conservator is an essential element in the modification proceeding. However, as the notary, Cardenas would not testify to the reasons, motives, or circumstances leading to the child’s choice. Cardenas’s testimony that he notarized the Choice Document is not an essential element in a modification proceeding. Even assuming Cardenas’s notarization of the child’s signature was an essential fact, Allen did not establish that his testimony was necessary to establish that fact. In addition to Cardenas, the child, Sandoval, Sandoval’s girlfriend, and Cardenas’s law partner, Andrea Hernandez, were all present at the signing. Allen failed to explain why the testimony of the child, Sandoval, or Sandoval’s girlfriend was insufficient to establish the circumstances of the child signing the document. See In re Sanders, 153 S.W.3d at 57 (because movant did not explain why other sources were insufficient, movant failed to show necessity of attorney’s testimony).

Second, Allen failed to show Cardenas’s dual roles as attorney and witness would cause her actual prejudice. Allen’s attorney never indicated an affirmative intention to call Cardenas as a witness. Instead, during questioning of Cardenas, Allen’s attorney prefaced her question with “if I call you during the jury trial.” During arguments to the court, following testimony, Allen’s attorney merely stated, “if I’m having to call him as a witness.” Finally, nothing in the evidence presented to the court pertains to whether Allen would suffer actual prejudice. Neither at the disqualification hearing nor in this mandamus proceeding, does Allen argue or explain how Cardenas’s testimony would cause her actual prejudice.

CONCLUSION

We conclude the trial court erred in granting Allen’s motion to disqualify Sandoval’s attorneys. Accordingly, we were prepared to conditionally grant the writ and order the trial judge to withdraw that portion of his Order dated August 25, 2009 in which he grants “Respondent’s motion to disqualify Petitioner’s attorneys, Adam Cardenas Jr. and Andrea M. Hernandez.” However, prior to the issuance of our opinion, the trial judge who signed the order, the Honorable Andy Míreles, passed away. Because this case was filed in the 407th Judicial District Court, we abate this proceeding and remand to allow the Presiding Judge of the 407th Judicial District Court to reconsider Judge Mireles’s ruling in light of this opinion.

      . Although Allen's motion asked only that Cardenas be disqualified, the trial court also disqualified Cardenas's law partner, Andrea Hernandez.


author: PHYLIS J. SPEEDLIN, Justice.

text:
    LANCER INSURANCE COMPANY, Appellant, v. Oscar PEREZ, II, Daniel Calhoun, Adriana Riojas, Juan Gabriel Gonzalez, Marisol Salazar, Raul Guerra, Jr., Maria E. Guerra, and John A. Vela, Jr., Appellees.
    No. 04-08-00839-CV.
    Court of Appeals of Texas, San Antonio.
    Dec. 23, 2009.

      E. Thomas Bishop, Alexander N. Beard, Bishop & Hummert, P.C., Dallas, TX, Bar-ham Lewis, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Houston, TX, Michael J. Black, Burns & Black, P.L.L.C., San Antonio, TX, for Appellant.
    Joe R. Torres, III, Law Offices of Joe R. Torres, III, David 0. Gonzalez, Law Offices of Baldemar Gutierrez, Alice, TX, Stephen J. Chapman, Barker, Leon & Faneher, LLP, Joseph E. Ritch, Wigington Rumley, L.L.P., Amador C. Garcia, Attorney at Law, Jason P. Hoelscher, Sico, White & Braugh, L.L.P., Corpus Christi, TX, David D. Towler, Law Office of David D. Towler, San Diego, TX, David George Connelly Baker Wotring, L.L.P., Robert B. Dubose, Alexander Dubose & Townsend LLP, Houston, TX, Douglas W. Alexander, Alexander Dubose & Townsend L.L.P., Austin, TX, for Appellee.
    Sitting: CATHERINE STONE, Chief Justice, PHYLIS J. SPEEDLIN, Justice, STEVEN C. HILBIG, Justice.
   OPINION ON APPELLANT’S MOTION FOR REHEARING

Opinion by.

PHYLIS J. SPEEDLIN, Justice.

The motion for rehearing filed by appellant, Lancer Insurance Company, is denied. This court’s opinion and judgment dated November 4, 2009 are withdrawn, and this opinion and judgment are substituted. We substitute this opinion to clarify a portion of the opinion.

This appeal involves a dispute over coverage under a business automobile insurance policy issued by Lancer Insurance Company. Two summary judgment motions were granted against Lancer in favor of coverage. Because we conclude material issues of fact exist as to one summary judgment, we reverse and remand in part; in addition, we reverse and render in part due to the remaining movant’s lack of standing.

Factual and Procedural Background

On April 30, 2004, members of the Alice High School band went on an overnight field trip to Six Flags Fiesta Texas in San Antonio, Texas. The Alice Independent School District contracted with Garcia Holiday Tours to transport the students on one of its buses. The bus driver was Raul Garcia, an employee of Garcia Holiday Tours. Unknown to Raul Garcia, he was infected with active tuberculosis. During the trip, several students observed Raul Garcia coughing on the bus. After the trip, Raul Garcia was diagnosed with active tuberculosis and all the passengers were subsequently tested. While some of the passengers’ tests were negative, several of the passengers tested positive for latent tuberculosis. The passengers who tested positive brought suit against Raul Garcia and Garcia Holiday Tours, asserting they were negligently exposed to the tuberculosis while on the trip and contracted it as a result of being in the closed environment of the bus. There were two main groups of plaintiffs, the Perez plaintiffs and the Salazar plaintiffs, in the underlying tort case styled Oscar Perez, II, et al. v. Raul Garcia, et al., Cause No. 05-03413200, in the 79th District Court of Jim Wells County, Texas (referred to herein as the “Passengers’ Suit”). Another passenger who tested positive, John A. Vela, Jr., did not join in the Passengers’ Suit, but later brought his own separate suit styled John A. Vela, Jr. v. Raul Garcia and Garcia Holiday Tours, L.C., Cause No. 08-02-46693, in the 79th District Court of Jim Wells County, Texas (referred to herein as the “Vela Suit”), which remains pending.

Upon being sued by the passengers, Garcia Holiday Tours made a written demand on Lancer for it to defend pursuant to the business automobile insurance policy Lancer had issued covering the bus. Lancer denied it had a duty to defend, and the Passengers’ Suit proceeded to trial. The jury found in favor of the passengers, and they were awarded a judgment for $5.25 million in total damages against Raul Garcia and Garcia Holiday Tours.

After judgment was rendered in the underlying tort action, Raul Garcia and Garcia Holiday Tours proceeded to seek recovery against Lancer on contractual and extra-contractual claims in Cause No. 06-08-44850. In their declaratory judgment suit, Raul Garcia and Garcia Holiday Tours asserted Lancer had a duty to defend and has a duty to indemnify them for the full amount of the $5.25 million judgment rendered in the Passengers’ Suit. The passengers and Vela intervened in the declaratory judgment coverage action. During the course of the coverage action, several motions for summary judgment were filed. The passengers filed a traditional motion for a partial summary judgment requesting a declaratory judgment that Lancer has an obligation to indemnify Raul Garcia and Garcia Holiday Tours and pay the passengers for the $5.25 million judgment. Vela filed his own traditional motion for summary judgment seeking to establish that Lancer has a duty to defend and indemnify Raul Garcia and Garcia Holiday Tours in his pending lawsuit. Lancer also affirmatively sought summary judgment denying any duty to defend or indemnify Raul Garcia and Garcia Holiday Tours under its business automobile policy. The only party who did not seek summary judgment was Raul Garcia/Garcia Holiday Tours.

In October 2008, the trial court signed three summary judgment orders that: (1) granted the passengers’ summary judgment motion, and held Lancer has a duty to indemnify Raul Garcia and Garcia Holiday Tours for the judgment in the Passengers’ Suit; (2) granted Vela’s summary judgment motion, and held Lancer has a duty to defend and indemnify Raul Garcia and Garcia Holiday Tours in the pending Vela Suit; and (3) denied Lancer’s summary judgment motion. Both the passengers’ and Vela’s claims against Lancer were severed out from Raul Garcia and Garcia Holiday Tours’ suit against Lancer, and the summary judgments in favor of the passengers and Vela became final for purposes of appeal. Lancer now appeals.

Analysis

On appeal, Lancer challenges the trial court’s summary judgment in favor of the passengers on the grounds that: (1) the order declaring Lancer has a duty to indemnify Raul Garcia and Garcia Holiday Tours for the passengers’ judgment is defective because it does not include a duty to defend finding, and the passengers’ pleadings do not support a duty to defend finding; and (2) the passengers’ summary judgment evidence failed to establish as a matter of law that Lancer has a duty to indemnify Raul Garcia and Garcia Holiday Tours for the passengers’ judgment. In addition, Lancer challenges the summary judgment in favor of Vela on the grounds that: (1) Vela does not have standing in this coverage action; and (2) the court’s finding of a duty to defend is not supported by Vela’s pleadings, and its finding of a duty to indemnify is premature because Vela’s suit is pending. Lancer asserts that we should reverse the summary judgments in favor of the passengers and Vela, and render judgment in Lancer’s favor pursuant to its summary judgment motion. Alternatively, Lancer asserts that we should reverse and remand for a trial on the material fact issue of whether the tuberculosis was caused by the “use” of the bus as required under the Lancer insurance policy.

Standard of Review

When both parties move for summary judgment, and the trial court grants one motion and denies the other, the appellate court considers the summary judgment evidence presented by both sides, determines all questions presented, and, if it determines the trial court erred, renders the judgment the trial court should have rendered. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005); FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex.2000). We review the trial court’s ruling on a motion for summary judgment de novo. Provident Life and Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003). When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, indulging every reasonable inference and resolving any doubts in the nonmovant’s favor. Id. A party moving for a traditional summary judgment must show that no genuine issue of material fact exists and that it is entitled to summary judgment as a matter of law. Id. at 215-16; Tex.R. Civ. P. 166a(c). When the trial court’s order does not specify the grounds for granting summary judgment, the appellate court must affirm if any of the theories presented in the motion have merit. Knott, 128 S.W.3d at 216; Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex.1996).

Summary Judgment: Duty to Defend & Indemnify

Interplay Between An Insurer’s Duty to Defend & Duty to Indemnify

We begin by noting that it is well established that an insurer’s duty to indemnify is a “distinct and separate” duty from the duty to defend. Utica Nat’l Ins. Co. of Tex. v. Am. Indem. Co., 141 S.W.3d 198, 203 (Tex.2004); Trinity Universal Ins. Co. v. Cowan, 945 S.W.2d 819, 821-22 (Tex.1997). Whether a duty to defend exists is determined under the “eight-corners rule,” by examining the claims alleged within the four corners of the plaintiffs petition and the coverage provided in the insurance policy. Pine Oak Builders, Inc. v. Great Am. Lloyds Ins. Co., 279 S.W.3d 650, 654 (Tex.2009). “If a petition does not allege facts within the scope of coverage, an insurer is not legally required to defend a suit against its insured.” Id. (quoting Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Merchs. Fast Motor Lines, Inc., 939 S.W.2d 139, 141 (Tex.1997)). In determining whether an insurer has a duty to indemnify, we similarly look to the policy language, but compare that language with the actual facts proven in the underlying suit that establish liability. Pine Oak Builders, 279 S.W.3d at 655-56; GuideOne Elite Ins. Co. v. Fielder Road Baptist Church, 197 S.W.3d 305, 310 (Tex.2006). In interpreting the applicable provisions of the insurance policy, we apply standard contract interpretation principles and seek to construe the parties’ intent from the policy as a whole based on the plain written language. Utica, 141 S.W.3d at 202; Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex.1994). When terms are defined in an insurance policy, the definition controls. Cowan, 945 S.W.2d at 823.

Even if an insurer has a duty to defend, and breaches it, the party seeking indemnification still bears the burden of establishing a duty to indemnify if the insurer contests coverage. Utica, 141 S.W.3d at 203; see Tex. Farmers Ins. Co. v. McGuire, 744 S.W.2d 601, 602-03 (Tex.1988) (“The doctrine of estoppel cannot be used to create insurance coverage when none exists by the terms of the policy.”). If the questions of coverage and indemnity turn on the resolution of disputed fact questions, summary judgment is inappropriate. See Utica, 141 S.W.3d at 204-05 (disagreeing that summary judgment record established insurer’s duty to indemnify as a matter of law, and reversing and remanding to the trial court for a determination of insurer’s indemnity obligation).

Is the Passengers’ Summary Judgment Order Defective?

Lancer initially asserts the summary judgment order declaring it has a duty to indemnify Raul Garcia and Garcia Holiday Tours for the judgment in the Passengers’ Suit is defective because the court did not consider whether Lancer had a duty to defend. Lancer further argues that because the pleadings in the underlying suit do not invoke a duty to defend, Lancer could not and does not have a duty to indemnify the passengers. We disagree. As we have previously noted, Uti-ca stresses that the duty to defend and the duty to indemnify are separate and distinct. Id. at 203. The respective duties differ in scope, and are invoked under different circumstances. GuideOne, 197 S.W.3d at 310. The duty to defend turns on the “factual allegations that potentially support a covered claim,” while the duty to indemnify turns on “the facts actually established in the underlying suit.” Pine Oak, 279 S.W.3d at 656. At the time the court ruled on the summary judgment motions, the insured’s tort liability had already been resolved by a jury. The only issue before the court in the declaratory judgment action was whether Lancer has an obligation to indemnify Raul Garcia and Garcia Holiday Tours for the judgment rendered for the passengers in the underlying tort action. The record shows the trial court correctly recognized that an insurer’s duties to defend and indemnify are separate and distinct, and stressed that this case was at the indemnification stage. Furthermore, the Supreme Court recently rejected the same argument made by Lancer, holding that “the duty to indemnify is not dependent on the duty to defend and ... an insurer may have a duty to indemnify its insured even if the duty to defend never arises.” D.R. Horton-Texas, Ltd. v. Market International Ins. Co., 300 S.W.3d 740, 741 (Tex.2009). Accordingly, the trial court did not err in looking only to the policy and “the facts actually established in the underlying suit.” Id. at 745; Pine Oak, 279 S.W.3d at 656. The court simply was not required to look to the underlying pleadings in making its determination of whether Lancer had a duty to indemnify its insured. D.R. Horton-Texas, 300 S.W.3d at 744-45. We hold the trial court’s summary judgment order holding Lancer has a duty to indemnify in the Passengers’ Suit is not deficient in the manner asserted by Lancer.

The Policy Language

The relevant provisions of Lancer’s business automobile insurance policy provided as follows:

SECTION II — LIABILITY COVERAGE
A.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.”
SECTION V — DEFINITIONS
A. “Accident” includes continuous or repeated exposure to the same conditions resulting in “bodily injury” or “property damage.”
B. “Auto” means a land motor vehicle ... designed for travel on public roads....
C. “Bodily injury” means bodily injury, sickness or disease sustained by a person including death resulting from any of these.

On appeal, Lancer has conceded that infection with tuberculosis falls within the policy’s language defining “bodily injury,” which includes a “sickness or disease.” Lancer has further conceded that the tuberculosis infection constitutes an “accident” under the policy’s definition, which includes “continuous or repeated exposure to the same conditions resulting in ‘bodily injury.’” Lancer asserts, however, that the “bodily injury” caused by the “accident” did not result from the “use” of the bus itself as required for coverage, but rather from the presence of an infected person — the bus driver; therefore, the “accident” does not fall within the scope of its policy. Lancer goes even further, contending that an “accident” consisting of an infection with a contagious disease could never be covered under this type of business automobile policy and was never intended to be within the policy’s coverage. Before we determine whether the passengers’ summary judgment evidence conclusively established that the infection resulted from the “use” of the bus itself, we must address Lancer’s assertion that there could never be coverage for this type of “accident” under the policy language.

No Possible Coverage for Infectious Disease “Accident” under the Policy?

Lancer has consistently argued, both in its own summary judgment motion and its response to the passengers’ summary judgment motions, that “as a matter of law” under the policy language it could never have a duty to defend or indemnify under the circumstances of this case in which bus passengers were infected with the bus driver’s airborne disease.

We disagree with Lancer’s broad assertion that “as a matter of law” there could never be coverage under these circumstances in view of Mi-Century Ins. Co. of Tex. v. Lindsey, 997 S.W.2d 153 (Tex.1999), which all parties agree is the seminal case on this issue. In Lindsey, the Supreme Court held that bodily injuries from a shotgun fired from a gun rack in a parked pickup truck were caused by an “accident” “arising out of the ‘use’ of the vehicle,” and were thus covered by a standard personal automobile policy. Id. at 158, 164 (young boy entered pickup truck by climbing through back window, thereby causing shotgun in mounted gun rack to discharge and injure passenger in another vehicle). The Court first concluded that the term “accident,” or even the presumably more restrictive terms “auto accident” and “motor vehicle accident,” in an auto insurance policy do not necessarily require a vehicle collision. Id. at 155 (“[Rjather, both the actor’s intent and the reasonably foreseeable effect of his conduct bear on the determination of whether an occurrence is accidental.”).

With respect to whether an injury arises out of the “use” of a motor vehicle, the Court in Lindsey created a list of factors based on two well-known insurance treatises, Appleman and Couch, to guide courts in making that determination for purposes of auto liability insurance coverage. Id. at 157. The Court stated,

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. The Court explained that all the factors are “unavoidably abstract,” but still helpful in focusing the analysis; however, the factors do not constitute an absolute test. Id.

The third Lindsey factor involving a causal connection between the “use” of the vehicle and the accident has been recognized as “especially troublesome” because the “degree of the vehicle’s involvement in the production of the injury is a difficult factor to judge....” Id. at 158 (citing multiple cases illustrating the difficulty). The Lindsey court explained,

Fundamentally, of course, the issue is what coverage is intended to be provided by insurers and acquired and shared by premium-payers. A drive-by shooting involves a vehicle only incidentally. The shooter could be standing still and accomplish the same result. In such a situation, even if the first two factors of the Appleman/Couch test were satisfied, the third could not be because the vehicle’s role in the occurrence is minimal as compared with the shooter’s. The vehicle is the mere situs of an incident that could have occurred anywhere. The shooting has nothing to do with the use of the vehicle as a vehicle.

Id. at 158. The Court stressed that each individual case must be examined to attempt to assess the particular facts and circumstances that gave rise to the injury. Id. at 159. However, the Court also noted that, “Generally,’ [i]f the ... incident could have occurred regardless of the vehicle, the courts seem to be consistent in holding there is no coverage’ ... [b]ut when the injury-producing act and its purposes are an integral part of the use of the vehicle as such, [the] injury caused ... has generally been held to arise out of use of the vehicle.” Id. at 159, 161 (emphasis added).

As an illustration of the application of its analysis, the Lindsey court compared an injury which results from purposefully handling a gun inside or around a vehicle with an injury caused by handling a gun for the purpose of placing it inside or removing it from a vehicle. Id. at 159-161. In the former, the vehicle is merely the site of the injury and its use is incidental to the injury-producing act — it could have occurred regardless of the vehicle; therefore, the injury did not arise out of the use of the vehicle. In the latter, the injury-producing act and its purpose are an integral part of the use of the vehicle — it could not have occurred regardless of the vehicle; therefore, the injury arose out of the use of the vehicle. Id.

Courts have considered whether vai'ious types of unusual accidents arose out of the “use” of a vehicle with varying outcomes. Some cases have resulted in courts holding the vehicle was merely the site of an injury which could have occurred regardless of the vehicle. See, e.g., Nat’l Union Fire Ins. Co. v. Merchs. Fast Motor Lines, 939 S.W.2d at 141-42 (passenger’s pleadings did not sufficiently allege that gunshot injury resulting from driver’s negligent discharge of gun inside truck was “caused by an accident resulting from ... use of a covered auto,” as the mere fact that truck was the site of the accident is not enough to allege necessary causal nexus between accident and use of truck, and thus insurer’s duty to defend was not triggered); Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 543 (Tex.2003) (holding injuries of bus passenger who was attacked by another passenger after disembarking from the bus did not arise from the “use” of the bus, but from the driver’s failure to supervise the public, and thus Tort Claims Act did not waive governmental immunity to passenger’s negligence claim); LeLeaux v. Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49, 51 (Tex.1992) (student on school band trip who injured her head on an emergency door frame while on the unattended parked bus did not incur an injury arising out of the “use” of the bus because bus was merely the site of the injury, and thus school district’s immunity was not waived under Tort Claims Act); Martinez v. VIA Metro. Transit Auth., 38 S.W.3d 173, 176 (Tex.App.-San Antonio 2000, no pet.) (injury to disabled passenger on government-owned bus did not arise out of use or operation of bus, as bus was merely the setting for the injury, and thus government’s immunity from liability was not waived); Aetna Cas. and Sur. Co. v. U.S. Fidelity and Guar. Co., 806 F.2d 302, 303-04 (1st Cir.1986) (applying Massachusetts law to conclude a bus driver’s sexual assault of a child on a school bus did not result from the “use” of the bus as a bus, and thus the resulting damages were not covered by a business auto policy).

Other cases, however, have held that the injury-producing act and its purpose were an integral part of the vehicle, and thus arose out of the “use” of the vehicle itself. See, e.g., Lincoln Gen’l Ins. Co. v. Aisha’s Learning Ctr., 468 F.3d 857, 860 (5th Cir2006) (applying Lindsey factors, Fifth Circuit concluded a daycare center van caused rather than merely contributed to the conditions that produced a child’s injuries where the child was left in the van for seven hours while it was parked in a hot parking lot; thus, the child’s injuries arose out of the “use” of the van); Lyons v. State Farm Lloyds and Nat’l Cas. Co., 41 S.W.3d 201, 205-06 (Tex.App.-Houston [14th Dist.] 2001, pet. denied) (holding that the injuries of a woman who fell while attempting to get on a parked trailer used for hay rides arose out of the “use” of the vehicle “as a vehicle”); Austin Indep. Sch. Dist. v. Gutierrez, 54 S.W.3d 860, 863-66 (Tex.App.-Austin 2001, pet. denied) (applying common ordinary meaning of “use” and holding student’s death arose out of the “use” of the bus where the school bus driver honked the horn to signal that student could safely cross the street, and thus school district’s immunity from suit was waived).

Under Lindsey and its progeny, we cannot say that the circumstances presented by this case could never fall within the language of Lancer’s business automobile policy as a matter of law. Therefore, we must apply the Lindsey factors to determine whether the passengers’ summary judgment evidence conclusively established the critical issue before us — whether the tuberculosis infection resulted from the “use” of the bus itself, as required for coverage under the Lancer policy.

Did the Passengers Prove the Infection Resulted From the “Use” of the Bus as a Matter of Law?

Lancer contends the passengers’ summary judgment evidence failed to establish as a matter of law that their infection with tuberculosis resulted from the “use” of the bus under the Lindsey factors. We recognize that application of the Lindsey analysis is fact-specific and turns on the particular facts of each case; therefore, we now turn to the summary judgment evidence to determine whether the passengers proved their infection resulted from the “use” of the bus as a matter of law.

In support of their summary judgment motions, the passengers attached the following summary judgment evidence relevant to the issue of “use” of the bus: (1) the Lancer insurance policy; and (2) the transcript and exhibits from the trial in the underling tort action. With respect to the Lindsey factors concerning whether the infections resulted from the “use” of the bus, in their motions the passengers specifically directed the trial court’s attention to the following trial testimony: (i) Raul Garcia testified he drove the bus load of Alice High School students to San Antonio on the weekend of April 30, 2004 while he had a bad cough which was later diagnosed as tuberculosis; (ii) Raul Garcia testified the air conditioning system on the bus recirculated the air inside of the bus, which caused the passengers to breath the same air as him; (iii) Louis Garcia, owner of Garcia Holiday Tours, testified the bus had windows which could be opened, but Garcia Holiday Tours instructs the passengers not to open the windows; and (iv) Louis Garcia also testified the air conditioning/ventilation system on the bus has a button that can be pushed at the bus driver’s discretion to allow fresh air in from the outside; Garcia admitted that during his deposition he had testified that when the bus is being driven “there’s no ventilation coming from outside” and the air inside is just re-circulated, but explained he had researched the system and learned about the fresh air button after his deposition. The passengers asserted in their motions that this evidence established the infections resulted from the inherent nature of a commercial bus used to transport large groups of people “breathing the same air as the driver;” they further asserted it proved the infections occurred inside the bus within its natural territorial limits, and resulted from the use of the bus’s closed air conditioning/ventilation system which re-circulated the infected air within the bus.

In its response, and its own summary judgment motion, Lancer asserted that none of the Lindsey factors are satisfied by the passengers’ summary judgment evidence, and therefore they failed to prove as a matter of law that the use of the bus infected the passengers with tuberculosis. Lancer argues on appeal that the trial evidence shows that: (i) it was Raul Garcia, the human bus driver, not the bus itself, who spread the infectious disease by coughing — which arguably could have happened regardless of the bus; (ii) there was nothing inherent in the nature of the bus that could have caused the disease separate and apart from the presence of the infected driver; (iii) there was testimony that some of the passengers who tested positive were exposed to the bus driver outside of the confines of the bus during the course of the weekend; and (iv) there was conflicting evidence as to whether fresh air from outside entered the bus’s air conditioning/ventilation system while it was in operation. Indeed, the record shows that some of the passengers testified they were exposed to the bus driver while standing outside the bus and at the hotel. Further, the trial record also shows there was conflicting testimony as to whether outside air was ever introduced into the air conditioning/ventilation system of the bus during the trip. Raul Garcia testified that the air conditioning system on the bus re-circulated the air inside of the bus, and that the passengers would therefore be breathing the same air he was breathing. On the other hand, Louis Garcia testified that a fresh air button was part of the air conditioning/ventilation system on the bus, and that if the driver, in his discretion, pressed the button it would permit outside air to come into the bus’s air conditioning/ventilation system; Garcia explained that he erroneously testified in his pre-trial deposition that if the bus’s air conditioning system was operating, it was recirculating the inside air with no introduction of outside air. No witness testified, however, as to whether the fresh air button was ever pressed during the trip.

With respect to the third Lindsey factor requiring that the bus itself must have produced the injury, and not merely contributed to cause the condition, Lancer stresses that no witness, whether lay or expert, testified that the air conditioning/ventilation system on the bus caused the infections by spreading the virus throughout the bus. See, e.g., Schaefer v. Tex. Employers’ Ins. Ass’n., 612 S.W.2d 199, 202-05 (Tex.1980) (causal connection between tuberculosis infection and workers’ compensation claimant’s employment may be proved by expert testimony); Abraham v. Union Pacific R. Co., 233 S.W.3d 13, 17-18 (Tex.App.-Houston [14th Dist.] 2007, pet. denied) (in negligence case involving exposure to toxic chemical, existence of causal connection between the exposure and the disease required specialized expert knowledge and testimony because such matters are not within the common knowledge of lay persons); Pilgrim’s Pride Corp. v. Smoak, 134 S.W.3d 880, 889 (Tex.App.-Texarkana 2004, pet. denied) (trier of fact may decide causation based on lay witness testimony when general experience and common sense enable a lay person to determine the causal relationship, or on expert testimony when scientific principles are needed to establish the causal relationship). Lancer also points to the conflicting testimony in the trial record about whether outside air was brought into the bus, asserting it creates at least a fact issue on causation. Lancer contends that, at best, the trial evidence established that the bus’s air conditioning/ventilation system may have furnished a condition which contributed to the transmission of the tuberculosis virus, which is insufficient to satisfy the third Lindsey factor.

On appeal, the passengers respond by arguing that the presence of a bus driver was a necessary component in order for the bus to be used according to its inherent nature and for its intended purpose of commercial mass transportation. The passengers also contend that the bus by its inherent nature was an enclosed environment with many people in close contact, and that based on the trial evidence that the bus’s air conditioning system was operating during the trip, recirculating the air inside the bus, they have established that the bus itself acted to spread the tuberculosis virus to the passengers while inside the bus, even to those in the back of the bus. While they concede there is some evidence of inadvertent contact between the bus driver and the passengers outside the bus, the passengers argue that the majority of the exposure to the driver during the trip occurred inside the enclosed environment of the bus, where several passengers testified they observed the driver coughing while the air conditioning system was operating within the bus.

Viewing the summary judgment evidence in the non-movant Lancer’s favor, as we must, we conclude there is conflicting evidence in the summary judgment record as to whether the passengers were infected with tuberculosis while inside the bus’s natural territorial limits, or whether they were infected during contact with the bus driver outside the bus; therefore, the summary judgment record does not conclusively establish that the “accident” occurred within the natural territorial limits of the bus. See Lindsey, 997 S.W.2d at 157. Further, we agree with Lancer that, based on the conflicting evidence as to whether outside air was introduced into the bus’s air conditioning/ventilation system during the trip, the passengers also failed to establish “as a matter of law” that the third Lindsey factor was met. See id. at 156-58. As the movants, the burden was on the passengers to establish every element of their declaratory judgment claim in order to obtain a summary judgment under Rule 166a. Tex.R. Evid. 166a; Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985) (movant for summary judgment has burden to show there is no genuine issue of material fact and thus entitled to judgment as a matter of law). The passengers failed to prove as a matter of law where and how the tuberculosis infections occurred; therefore, we cannot say they established that the tuberculosis infections resulted from the use of the bus “as a matter of law.” Because material fact questions exist on the issue of “use” of the bus, the passengers were not entitled to summary judgment on their declaratory judgment claim in this coverage action. Knott, 128 S.W.3d at 215. Therefore, we must reverse the passengers’ summary judgment order and remand to the trial court for further proceedings on these issues. See Utica, 141 S.W.3d at 200 (reversing summary judgment on duty to indemnify based on disputed fact issue and remanding for further trial court proceedings).

Lancer’s Motion for Summary Judgment

On appeal, Lancer also asks us to review the denial of its affirmative summary judgment motion and, upon review, to reverse and render judgment in its favor on both the contractual and extra-contractual claims. As a general matter, we cannot review the denial of a summary judgment motion. United Water Services, L.L.C. v. Zaffinni, No. 04-08-00211-CV, 2009 WL 136925, at *7 (Tex.App.-San Antonio Jan. 21, 2009, pet. denied) (denial of summary judgment motion does not finally decide any question before the court); Anderson v. Bormann, 489 S.W.2d 945, 946-47 (Tex.Civ.App.-San Antonio 1973, writ ref'd n.r.e.). To the extent Lancer had a competing summary judgment motion on the existence of a duty to defend and indemnify in the Passengers’ Suit, we have already determined, supra, that under Lindsey and its progeny we do not agree that the circumstances presented by this case could never fall within the language of Lancer’s business automobile policy as a matter of law; therefore, we hold the trial court did not err in denying Lancer’s summary judgment motion on that basis. As to Lancer’s affirmative defense to the extra-contractual claims asserted by Garcia Holiday Tours against Lancer, those claims were not severed out into the cause before us and are pending in the trial court below; therefore, we have no jurisdiction to address Lancer’s request for summary judgment based on its affirmative defense that Garcia Holiday Tours’ extra-contractual claims are barred by limitations.

Vela’s Summary Judgment

Finally, Lancer challenges the summary judgment order declaring that it has a duty to defend and indemnify Raul Garcia and Garcia Holiday Tours in the pending Vela Suit. Lancer asserts that Vela has no standing to pursue his claim in intervention in this coverage action between Lancer and its insured Garcia Holiday Tours, and therefore the trial court erred in granting Vela’s motion for summary judgment. Vela replies that Lancer is estopped from asserting that Vela has no standing because Lancer admitted that a controversy exists between them by suing Vela in federal court for a declaratory judgment that it has no duty to defend or indemnify in Vela’s pending state court action.

Vela filed his original tort petition against Raul Garcia and Garcia Holiday Tours on February 11, 2008, after the $5.25 million judgment was rendered in the Passengers’ Suit. Then, on March 19, 2008, Vela intervened in this declaratory judgment coverage action between Lancer and Raul Garcia/Garcia Holiday Tours, asserting that his factual allegations are identical to those in the Passengers’ Suit and requesting a declaratory judgment that his claim is covered under the Lancer policy. Lancer moved for summary judgment, asserting that Vela lacked standing to pursue his claim in intervention because he was not a party to the Passengers’ Suit, and thus there is no real justiciable controversy between Vela and Lancer in this coverage action. Vela in turn sought summary judgment against Lancer on his claim that Lancer owes a duty to defend and indemnify in his pending suit.

Vela argues that Lancer is judicially estopped from challenging his standing. We disagree. As a necessary component of subject matter jurisdiction, standing cannot be conferred by estoppel, consent or waiver. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443-45 (Tex.1993); In re H.G., 267 S.W.3d 120, 124-25 (Tex.App.-San Antonio 2008, pet. denied). The concept of standing identifies those disputes that are appropriate for resolution through the judicial process. Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990); Brown v. Todd, 53 S.W.3d 297, 305 (Tex.2001). Standing requires that a real controversy exist between the parties which will be actually determined by the judicial declaration sought. Tex. Ass’n of Bus., 852 S.W.2d at 446; Tex. Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 517-18 (Tex.1995). “[A] plaintiffs complaint must establish that he has a ‘personal stake’ in the alleged dispute” and that the “injury suffered is ‘concrete and particularized.’” Brown, 53 S.W.3d at 305 (quoting Raines v. Byrd, 521 U.S. 811, 819, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997)).

Here, unlike Garcia Holiday Tours, Vela is not the insured under the Lancer policy, and, unlike the passengers, Vela’s claims have never been adjudicated and he does not hold a judgment against Lancer’s insured. See Griffin, 955 S.W.2d at 82-83; see also Collier v. Allstate County Mut. Ins. Co., 64 S.W.3d 54, 62 (Tex.App.-Fort Worth 2001, no pet.) (duty to indemnify only arises after an insured has been adjudicated to be legally responsible for damages in the lawsuit). Moreover, Garcia Holiday Tours never moved for a summary judgment declaring that Lancer owes it a duty to defend or indemnify in the Vela Suit. We conclude that Vela has no justi-ciable interest in this coverage action, and thus no standing. Accordingly, we reverse the summary judgment in favor of Vela and render judgment dismissing Vela’s declaratory judgment claim for want of jurisdiction.

Conclusion

Based on the foregoing analysis, we conclude that disputed fact questions exist concerning whether the bodily injury caused by the accident resulted from the “use” of the bus under the Lindsey factors. The passengers therefore did not prove as a matter of law that them infection with tuberculosis resulted from the “use” of the Garcia Holiday Tours’ bus. Accordingly, we reverse the summary judgment in favor of the passengers, and remand to the trial court for further proceedings consistent with this opinion. As to Vela, we conclude he lacks standing and therefore reverse the summary judgment in Vela’s favor and render judgment dismissing Vela’s declaratory judgment claim for want of jurisdiction.

      . Raul Garcia and Garcia Holiday Tours alleged claims for breach of the duty to defend, breach of the duty of good faith and fair dealing, deceptive insurance practices and prompt payment violations under the Insurance Code, and negligence based on Lancer's refusal to defend them in the Passengers' Suit.

      . Both the Perez and Salazar plaintiffs filed motions for summary judgment based on nearly identical grounds. The trial court ultimately granted both motions in one order.

      . In an order dated January 29, 2009, we consolidated Lancer’s two appeals from the summary judgment orders entered in favor of the Passengers and Vela into a single appeal proceeding under this Appeal No. 04-08-00839-CV.

      . In addition, in its brief Lancer asserted the passengers' summary judgment is erroneous because it imposes an obligation to indemnify beyond Lancer's $5 million policy limit. We need not address the policy limit issue because the passengers stipulated in their brief that they are only seeking to recover up to the policy limits from Lancer, not the full $5.25 million amount of the judgment.

      . At a hearing on severance and other matters on November 3, 2008, the parties discussed whether the summary judgment order granting the passengers' motion should include both the duty to defend and the duty to indemnify. The trial judge stated that the case was at the indemnification stage, explaining, "... that should be a duty to indemnify, because I think the duty to defend ... how do you defend something that's already been adjudged? So, I think it's — we’re at the indemnification stage of this, aren't we?"

      . Property Casualty Insurers Association, an insurance company trade group, filed an ami-cus curiae brief in support of Lancer's position stating that the purpose of an automobile insurance policy is to cover injuries resulting from auto accidents, and “if courts expand coverage to include infectious diseases caught in automobiles, then the nature of the policy would change ... [and] the task of underwriting would become more complex, and more costly.”

      . In their supplemental summary judgment motion, in which all the passengers joined, the Perez plaintiffs and Salazar plaintiffs adopted and incorporated by reference the others' summary judgment motion and summary judgment evidence.

      . In its response to the passengers' summary judgment motions. Lancer incorporated the passengers' summary judgment evidence. Lancer also attached its insurance policy, among other documents, to its own motion for summary judgment.

      . As one of its sub-issues on appeal, Lancer asserts that the causation language in its policy requiring that the bodily injury caused by the accident "result from” the use of the covered vehicle constitutes a higher degree of causation than the phrase "arise out of” that was interpreted in Lindsey as meaning simply a "causal connection or relation” between the accident or injury and the use of the vehicle. See Lindsey, 997 S.W.2d at 156. We do not reach this issue due to our conclusion that disputed fact issues preclude summary judgment.

      .Lancer filed a federal declaratory judgment action with respect to Vela’s state claims on February 21, 2008, shortly after Vela filed his original state petition. The federal district court dismissed Lancer's suit in its orders dated December 11, 2008 and February 17, 2009 because the declaratory judgment Suit was barred under res judicata and the Anti-Injunction Act; the court alternatively denied Lancer’s summary judgment motion.

      . The judgment in the Passengers’ Suit was signed on September 19, 2007.

      . Our opinion should not be read as precluding Raul Garcia/Garcia Holiday Tours' right to seek a defense and indemnification from Lancer against Vela's claim.