text:
    Carter Alan NESS, Appellant, v. The STATE of Texas, Appellee.
    No. 01-03-01180-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Dec. 2, 2004.

      Bob Wicoff, Houston, TX, for Appellant.
    William J. Delmore, III, Chief Prosecutor, Appellate Division, Charles A. Rosen-thal, Jr., District Attorney — Harris County, Houston, TX, for Appellee.
    Panel consists of Chief Justice RADACK and Justices KEYES and ALCALA
   OPINION

ELSA ALCALA, Justice.

Appellant, Carter Aan Ness, pleaded nolo contendere to the misdemeanor offense of driving while intoxicated, but reserved his right to appeal the denial of his motion to suppress. Pursuant to appellant’s negotiated plea, the trial court assessed punishment at 180 days in jail, suspended for one year of community supervision, and a $100 fine. In his sole point of error, appellant contends that the trial court abused its discretion by overruling his motion to suppress, which alleged that his breath-test results should be suppressed because he was illegally coerced by a peace officer to submit to the breath test. We affirm the trial court’s ruling.

Background

Houston Police Department Officer William Lindsey administered a field-sobriety test to appellant, whom the officer had pulled over for speeding. After administering the test, Officer Lindsey told appellant that he was being arrested and detained for driving while intoxicated (DWI). When appellant questioned the arrest and said that he “misunderstood ‘detained’ versus ‘arrested[,]’ ” Officer Lindsey told appellant that he was being arrested and informed appellant that he would have an opportunity to give a breath sample. Officer Lindsey then told appellant that he was being detained, depending on the outcome of the test. Another police officer, Officer Pierce, took appellant to the police station, where he gave appellant the required, statutory warning before administering the intoxñyzer test. Appellant then provided a breath sample for analysis of its blood alcohol concentration.

At the hearing on the motion to suppress, the trial court viewed a videotape of appellant’s arrest that Officer Lindsey had recorded, using the video camera in his police car. After observing the videotape, the trial court noted on the record that she heard Officer Lindsey tell appellant that he was under arrest and then say, “pending the outcome, you’re being detained.”

Appellant and Officer Lindsey were the only witnesses who testified at the hearing on the motion to suppress. Officer Lindsey confirmed that he had told appellant, “right now, all you are is being detained, depending on the outcome of the test.” Appellant testified as follows at the hearing on his motion to suppress:

Q: Officer Lindsey then told you as you were walking away, after he said you were under arrest, Well, no — you’re being detained, and pending the outcome of that — of the results of the test, you’re only being detained. That’s not quoting what he said, but that’s basically what he said; is that correct?
A: Yes.
Q: How did you interpret that? What did you interpret that to mean?
A: I heard him say that and say, “depending the outcome of the test.”
Q: So, how did you interpret that to mean? In your mind, what did that mean to you?
A: It meant that I would be released if I passed the test, pending the outcome of the test.

Appellant claimed that he would not have agreed to take the breath test without Officer Lindsey’s statement.

The trial court ruled that appellant had not been coerced to take the breath test and denied appellant’s motion to suppress the results of the breath test.

Motion To Suppress

In his sole point of error, appellant contends that the trial court erred by overruling his motion to suppress. Appellant contends that (1) he was coerced to take the breath test by Officer Lindsey’s statement and (2) he therefore took the test involuntarily.

We review a trial court’s ruling on a motion to suppress for abuse of discretion, and we review the record of the hearing on the motion in the light most favorable to the trial court’s ruling. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim.App.2002); Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App.1996); Rivera v. State, 808 S.W.2d 80, 96 (Tex.Crim.App.1991). Ruling on a motion to suppress lies within the sound discretion of the trial court. Villarreal, 935 S.W.2d at 138. At the hearing on the motion, the trial court is the sole judge of the credibility of the witnesses and decides the weight to give their testimony. Id,.; Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990). Accordingly, we “must view the record evidence and all reasonable inferences therefrom in the light most favorable to the trial court’s ruling, and must sustain the trial court’s ruling if it is reasonably supported by the record and is correct on any theory of law applicable to the case.” Villarreal, 935 S.W.2d at 138; see Romero, 800 S.W.2d at 543. In reviewing the trial court’s exercise of its discretion, we apply a bifurcated standard of review that requires us to defer almost totally to the trial court’s determination of facts that depend on credibility assessments. State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App.2000); Dickey v. State, 96 S.W.3d 610, 612 (Tex.App.-Houston [1st Dist.] 2002, no pet.). We review the trial court’s application of the law de novo. See Ross, 32 S.W.3d at 856; Dickey, 96 S.W.3d at 612.

Section 724.011 of the Transportation Code, the “implied consent” statute, provides that a person arrested for suspected driving while intoxicated is deemed to have consented to the taking of samples for a breath or blood test. Tex. Transp. Code Ann. § 724.011(a) (Vernon 1999). An adult person arrested for DWI must be warned that refusal to submit to a breath test will result in the following consequences: (1) evidence of the refusal will be admissible against the person in court, and (2) the person’s driver’s license will be suspended for 180 days. Tex. Transp. Code Ann. § 724.015(l)-(2) (Vernon Supp. 2004-2005); Erdman v. State, 861 S.W.2d 890, 893 (Tex.Crim.App.1993) (decided under former version of section 724.015, which provided for 90-day loss-of-license penalty). The suspect must likewise be informed of possible consequences if he submits to the test and the results of the test show a prohibited blood-alcohol level. See Tex. Transp. Code Ann. § 712.015(3), (4) (Vernon Supp.2004-2005).

A suspect’s consent to a breath test must be voluntary. Turpin v. State, 606 S.W.2d 907, 914 (Tex.Crim.App.1980) (construing former version of section 724.015 of Transportation Code). For consent to a breath test to be deemed “voluntary,” a suspect’s decision must not be the result of physical pressure or psychological pressure brought to bear by law enforcement officials. See Thomas v. State, 723 S.W.2d 696, 704-05 (Tex.Crim.App.1986) (noting that consent to breath test involuntary if induced by physical force or mental coercion); Schafer v. State, 95 S.W.3d 452, 455 (Tex.App.-Houston [1st Dist.] 2002, pet. refd) (noting that consent to breath test involuntary if induced by misstatement of direct statutory consequences arising from refusal). A suspect’s decision to submit to a breath test must be his own, made freely, and with a correct understanding of the statutory consequences of refusal. Erdman, 861 S.W.2d at 893.

In Erdman, the arresting officer gave the suspect the warnings concerning the consequences of refusing to submit to a breath test, as required by section 724.015, but added additional, extra-statutory warnings. Erdman, 861 S.W.2d at 893-94. The extra-statutory warnings included the following: (1) that DWI charges would be filed against the suspect and (2) that he would be put in jail that night. Id. at 891, 894. The Court of Criminal Appeals held that the extra-statutory warnings conveyed to the suspect were of the type that would result in “considerable psychological pressure.” Id. at 894. Erdman thus stands for the proposition that law enforcement officials “must take care to warn D.W.I. suspects correctly about the actual, direct, statutory consequences of refusal.” Id. (emphasis in original); see also State v. Serrano, 894 S.W.2d 74, 75-76 (Tex.App.Houston [14th Dist.] 1995, no pet.) (affirming grant of new trial premised on warnings provided by arresting officer that exceed warnings listed in statute).

Officer Lindsey’s statement here falls far short of the officer’s coercive statements in Erdman. Officer Lindsey did not make any statements about the consequences of refusal to take a breath test beyond those listed in section 724.015. In stating simply, “pending the outcome, you’re being detained[,]” Officer Lindsey did not warn appellant that dire consequences would follow if he refused to take the breath test. Likewise, Officer Lindsey did not make any extra-statutory assertions about the possible consequences of refusing to submit to the test. Accordingly, Officer Lindsey did not coerce appellant to consent.

In Sandoval v. State, a DWI suspect asked the arresting officer what consequences would follow if he passed the breath test. Sandoval v. State, 17 S.W.3d 792, 794 (Tex.App.-Austin 2000, pet. ref d). The officer told the suspect that a family member could come to pick him up if he passed, but that he would be charged with DWI if he did not pass, whereupon the suspect agreed to take test, which proved positive for alcohol. Id. Sandoval filed a pretrial motion to suppress the test results on the grounds that he had been coerced, and that his consent was therefore involuntary. Id. In affirming the trial court’s refusal to grant the motion to suppress, the Austin Court of Appeals concluded that an officer’s statements to Sandoval about the consequences of passing or failing the breath test, were not of the same coercive nature as those in Erdman, which were premised solely on the consequences of refusing to submit to the test. See Sandoval, 17 S.W.3d at 797. Moreover, Sandoval did not present additional evidence to show a causal link between his consent to the breath test and the officer’s statements. Id.

Much like the officer’s statements in Sandoval, and unlike the statements in Erdman, Officer Lindsey’s statement to appellant was not coercive because it did not encompass the adverse circumstances that would occur if appellant refused to submit to the test. Although appellant testified that he understood Officer Lindsey’s statement to mean that he would be released if he passed the breath test and claimed that he consented to the test based on that understanding, the trial court acted within its discretion by rejecting appellant’s professed understanding of Officer Lindsey’s statement, given the officer’s testimony, the videotaped evidence, and circumstances showing that Officer Pierce gave appellant the correct statutory warnings before obtaining appellant’s breath test.

Based on the record of the hearing on appellant’s motion to suppress, we conclude that the trial court did not abuse its discretion by finding that appellant was not induced or coerced to submit a breath sample for testing. We conclude that the trial court, having properly reached the factual determination that appellant voluntarily submitted to the breath test, did not abuse its discretion by reaching the legal conclusion that appellant’s motion to suppress should be denied.

Conclusion

We affirm the trial court’s ruling and the judgment of the trial court.

      . See Tex. Pen.Code Ann. § 49.01 (Vernon 2003).

      . The statutory warning notifies the adult DWI suspect that he is under arrest and will be asked for a specimen of either breath or blood. The warning explains that the specimen will be analyzed to determine its alcohol concentration or the presence of a controlled substance. The warning also gives notice to the adult suspect of the consequences of submitting or refusing to submit a specimen under section 724.015 of the Transportation Code. Tex. Transp. Code Ann. § 724.015 (Vernon Supp.2004-2005). Section 724.015 reads as follows:
      § 724.015. Information Provided by Officer Before Requesting Specimen Before requesting a person to submit to the taking of a specimen, the officer shall inform the person orally and in writing that:
      (1) if the person refuses to submit to the taking of the specimen, that refusal may be admissible in a subsequent prosecution;
      (2) if the person refuses to submit to the taking of the specimen, the person’s license to operate a motor vehicle will be automatically suspended, whether or not the person is subsequently prosecuted as a result of the arrest, for not less than 180 days;
      (3) if the person is 21 years of age or older and submits to the taking of a specimen designated by the officer and an analysis of the specimen shows the person had an alcohol concentration of a level specified by Chapter 49, Penal Code, the person’s license to operate a motor vehicle will be automatically suspended for not less than 90 days, whether or not the person is subsequently prosecuted as a result of the arrest;
      (4) if the person is younger than 21 years of age and has any detectable amount of alcohol in the person's system, the person’s license to operate a motor vehicle will be automatically suspended for not less than 60 days even if the person submits to the taking of the specimen, but that if the person submits to the taking of the specimen and an analysis of the specimen shows that the person had an alcohol concentration less than the level specified by Chapter 49, Penal Code, the person may be subject to criminal penalties less severe than those provided under that chapter;
      (5) if the officer determines that the person is a resident without a license to operate a motor vehicle in this state, the department will deny to the person the issuance of a license, whether or not the person is subsequently prosecuted as a result of the arrest, under the same conditions and for the same periods that would have applied to a revocation of the person's driver’s license if the person had held a driver’s license issued by this state; and
      (6) the person has a right to a hearing on the suspension or denial if, not later than the 15th day after the date on which the person receives the notice of suspension or denial or on which the person is considered to have received the notice by mail as provided by law, the department receives, at its headquarters in Austin, a written demand, including a facsimile transmission, or a request in another form prescribed by the department for the hearing.
      Tex. Transp. Code Ann. § 724.015 (Vernon Supp.2004 — 2005).


source: Caselaw Access Project

author: Justice LANG.

license: Public Domain

text:
    Christopher Dean RANDOLPH, Appellant v. The STATE of Texas, Appellee.
    No. 05-03-00793-CR.
    Court of Appeals of Texas, Dallas.
    Dec. 6, 2004.

      Robert Udashen, Kevin B. Ross, Sorrels & Udashen, Dallas, Nathan Eight, Irving, for appellant.
    John R. Roach, Collin County District Attorney, Katharine K. Decker, McKinney, for the State.

      Before Justices FITZGERALD, RICHTER, and LANG.
   OPINION

Opinion by

Justice LANG.

Christopher Dean Randolph appeals his conviction, after a bench trial, for driving while intoxicated, claiming error in the trial court’s denial of his motion to suppress. Appellant brings two issues on appeal: (1) the trial court erred in denying his motion to suppress because the police officer entered appellant’s garage without a warrant, probable cause, or exigent circumstances in violation of the Fourth Amendment of the United States Constitution and Article 1, § 9 of the Texas Constitution; and (2) the trial court erred in denying his motion to suppress because, under article 14.03(a)(4) of the Texas Code of Criminal Procedure, the police officer had no statutory authority to enter appellant’s garage and seize him.

The resolution of this appeal requires us to analyze a patchwork of facts. The story begins with Stacy Randolph’s complaint to the police that appellant, her husband, assaulted her and that he left the house intoxicated, driving his Porsche automobile. When appellant returned home, the investigating officer confronted appellant in his garage as he left his car and headed into his house. It was at that point the officer smelled alcohol on appellant’s breath and he began investigating the driving while intoxicated charge. Appellant’s motion to suppress claimed that the officer unlawfully entered his garage and the driving while intoxicated investigation was unlawful. We conclude the trial court did not err in denying appellant’s motion to suppress. Accordingly, appellant’s issues are decided against him and we affirm the trial court’s judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

According to his wife, Stacy Randolph, appellant came home intoxicated. Ms. Randolph did not want him to go out again because she was seven and one-half months pregnant, she thought that if he left he might not return, and she was concerned about him driving while intoxicated. Consequently, she tried to hide his car keys. In response, appellant attempted to kick down the door of the room where his wife went with the car keys, causing Ms. Randolph to call 9-1-1. After her 9-1-1 call was answered, Ms. Randolph hung up the telephone without speaking. Appellant entered the room, hit his wife in the back of the head, and took the car keys. Afterward, Ms. Randolph heard her husband leave. Officer Quillin of the Plano Police Department received a dispatch regarding the 9-1-1 hang-up call originating from appellant’s residence and arrived at the house approximately five minutes later. When Officer Quillin arrived at the Randolphs’ house, he knocked on the front door, but no one answered. As a result, Officer Quillin decided to cheek for signs of a struggle or any other problem. To do so, he inspected the perimeter of the residence and walked through the porte-cochere that leads to the back of the house and the garage. As Officer Quillin passed through the porte-cochere and reached the side door in the rear of the residence, he shined his flashlight into the house and saw Ms. Randolph walking in the hallway. Ms. Randolph saw the officer and let him into her house.

Ms. Randolph told Officer Quillin about the incident, that her husband was drunk, and that he had left to purchase drugs. Ms. Randolph provided Officer Quillin with a written statement and descriptions of appellant’s attire and the silver Porsche he was driving. In addition, Officer Quillin asked Ms. Randolph whether she needed medical attention for her injuries, and she responded that she did not. No photographs were taken of her. Officer Quillin also advised Ms. Randolph that she had the right to obtain an emergency protective order and gave her information on how to procure one.

Meanwhile, Officers Cavin and Pfahning were dispatched to find the silver Porsche because of the 9-1-1 call regarding the assault and because the driver was believed to be intoxicated. The officers drove around the vicinity, checking area restaurants and bars.

After obtaining Ms. Randolph’s written statement, Officer Quillin drove down the street and parked near the Randolphs’ house. There, he wrote his offense report and watched for appellant’s possible return. Approximately 45 minutes after the initial 9-1-1 call, Officer Quillin was completing his offense report when he observed a silver Porsche turn onto appellant’s street and pull into appellant’s driveway. The silver Porsche was not moving erratically or weaving. Officer Quillin returned to the house so that he could speak with appellant about the assault. He parked in front of the house. Through the passenger seat window of his patrol car, he looked through the porte-cochere and observed appellant maneuvering the silver Porsche into the garage. Officer Quillin exited his patrol car and walked through the porte-cochere where he observed appellant standing near the silver Porsche inside the garage.

Calling appellant by name, Officer Quil-lin identified himself as a police officer and told appellant that he wanted to speak with him. At that point, appellant, who was still standing near his Porsche inside his garage, turned around and acknowledged the officer’s presence. Then, appellant turned around slowly and started walking toward the back of the garage and the door to the house. Officer Quillin entered the garage, made contact with appellant, smelled a strong odor of alcohol on appellant, and observed that appellant was staggering. Appellant was advised by Officer Quillin that he was “detaining” appellant for the assault and he escorted appellant out of the garage. Once out of the garage, for his own safety and because he was the only officer present, Officer Quillin handcuffed appellant. Then, he walked appellant to the front of the house to wait for his back-up. Contrary to the State’s contention that at this stage appellant was detained, appellant claims he was, under the facts, arrested.

Officers Cavin and Pfahning arrived at appellant’s house approximately three or four minutes after Officer Quillin walked appellant to the front of the house. Upon their arrival, the officers removed the handcuffs and advised appellant that he was not under arrest. Officers Cavin and Pfahning gave appellant the field sobriety tests. Based upon their observations during the field sobriety tests, Officers Cavin and Pfahning arrested appellant for driving while intoxicated and transported him to the jail.

Appellant was charged by information with the offense of driving while intoxicated. Prior to trial, appellant filed a motion to suppress the evidence obtained respecting appellant’s intoxication after Officer Quillin entered his garage. Officer Quillin was the only witness to testify at the hearing on appellant’s motion to suppress. The trial court denied appellant’s motion. During the trial, appellant’s motion to suppress was reargued, and the trial court again denied his request to suppress the evidence obtained respecting the driving while intoxicated charge after Officer Quil-lin entered his garage. After the hearing on appellant’s motion to suppress, the trial court made findings of fact and conclusions of law, but amended them after reconsidering the issue at trial.

At the conclusion of the bench trial, the trial court found appellant guilty of misdemeanor driving while intoxicated. Appellant was sentenced to ninety days of confinement in the county jail and fined $1,600. The trial court suspended the sentence and ordered that appellant be placed on two years of community supervision. Appellant appeals his conviction claiming the errors that are described above in the trial court’s denial of his motion to suppress.

II. STANDARD OF REVIEW

A bifurcated standard of review is applied to a trial court’s ruling on a motion to suppress evidence. This standard of review gives almost total deference to a trial court’s determination of historical facts and applies a de novo review of a trial court’s application of the law to those facts. See Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). A trial court is the sole trier of fact, the judge of witness credibility, and the determiner of the weight given to witness testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000).

When a trial court rules on a motion to suppress evidence, its application of the law of search and seizure is reviewed de novo. Walter v. State, 28 S.W.3d 538, 540 (Tex.Crim.App.2000). A trial court’s determinations of reasonable suspicion and probable cause are also reviewed de novo. Ornelas v. United States, 517 U.S. 690, 696-99, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); accord Guzman, 955 S.W.2d at 87; see also State v. Crawford, 120 S.W.3d 508, 510 (Tex.App.-Dallas 2003, no pet.). If a trial court’s decision is correct on any theory of law applicable to the case, the decision will be sustained. Ross, 32 S.W.3d at 855-56; see also Singleton v. State, 91 S.W.3d 342, 346 (Tex.App.-Texarkana 2002, no pet.).

III. CONSTITUTIONALITY OF OFFICER’S ENTRY INTO APPELLANT’S GARAGE

Initially, the State and appellant address the issues of whether Officer Quillin’s confrontation of appellant was a detention or an arrest and whether appellant’s garage with its door open is a constitutionally protected area. In order to resolve appellant’s points on appeal, we need not decide these issues. We will assume without deciding that Officer Quil-lin arrested appellant, rather than simply detaining him, and the garage was a constitutionally protected area. Now, we address appellant’s central claim that the evidence obtained by Officer Quillin should be suppressed from the point in time when Officer Quillin entered appellant’s garage and stood next to appellant observing that appellant appeared to be intoxicated.

The parties agree that police officers need probable cause to arrest plus exigent circumstances that make procuring a warrant impracticable, in order to lawfully enter a residence and make a warrants less arrest. Payton v. New York, 445 U.S. 573, 583-590, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); see also Kirk v. Louisiana, 536 U.S. 635, 638, 122 S.Ct. 2458, 153 L.Ed.2d 599 (2002); Welsh v. Wisconsin, 466 U.S. 740, 749, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984); Winter v. State, 902 S.W.2d 571, 573 (Tex.App.-Houston [1st Dist.] 1995, no pet.). In the case before us, if exigent circumstances existed for Officer Quillin’s actions, then Officer Quil-lin was legally authorized to enter the garage, even if it was a constitutionally protected area, and Officer Quillin was authorized to seize appellant and escort him, as he did, to the street, where he was subsequently administered sobriety tests and placed in custody.

a) applicable law

In reviewing a warrantless arrest to determine the existence of probable cause, we look to the facts known to the officer at the time of the arrest. Amores v. State, 816 S.W.2d 407, 415 (Tex.Crim.App.1991). It is not necessary for an officer to have first-hand knowledge of an offense. See Astran v. State, 799 S.W.2d 761, 763 (Tex.Crim.App.1990). Whether probable cause exists is determined by applying the “totality of the circumstances” test. Amores, 816 S.W.2d at 413. The standard for the legality of a warrant-less arrest is not equal to the sufficiency of the evidence for a conviction; the standard is probable cause, not proof beyond a reasonable doubt. Delgado v. State, 718 S.W.2d 718, 720-21 (Tex.Crim.App.1986). The State bears the burden to prove the existence of probable cause to justify a warrantless arrest or search. Amores, 816 S.W.2d at 413. An officer has probable cause to make an arrest when the facts and circumstances within the officer’s knowledge, and of which he has reasonable trustworthy information, are sufficient to warrant a person of reasonable caution to believe that a particular person has committed or is committing an offense. Id. The Supreme Court has repeatedly stated:

“[P]robable cause” to justify an arrest means facts and circumstances within the officer’s knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.

Gerstein v. Pugh, 420 U.S. 108, 111, 95 S.Ct. 854, 48 L.Ed.2d 54 (1975); see also Michigan v. DeFillippo, 443 U.S. 31, 37, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979). The same probable cause required for a lawful arrest is required in order to detain and remove a person from his home. See Hayes v. Florida, 470 U.S. 811, 816-17, 105 S.Ct. 1643, 84 L.Ed.2d 705 (1985).

A person may be validly detained or arrested for one offense when an officer actually desires to investigate him for a different offense. Garcia v. State, 827 S.W.2d 937, 939-44 (Tex.Crim.App.1992); see Walter, 28 S.W.3d at 543; see also Singleton, 91 S.W.3d at 347; Fletcher v. State, 90 S.W.3d 419, 421 (Tex.App.-Amarillo 2002, no pet.). An objective standard is applied to determine the validity of the first arrest which leads to another arrest. Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). The objective standard is based on the reasoning that a reasonable officer in the same situation would have reasonable suspicion to execute the stop or probable cause to arrest, and therefore, nothing objectively unlawful would have been done. See Singleton, 91 S.W.3d at 347.

Applying an objective standard, even if Officer Quillin arrested appellant for the alleged assault solely to investigate him for the offense of driving while intoxicated, Officer Quillin’s intent is of no consequence as long as the initial arrest for the alleged assault was valid. See Garcia, 827 S.W.2d at 939-44; see also Walter, 28 S.W.3d at 543; Singleton, 91 S.W.3d at 347; Fletcher, 90 S.W.3d at 421.

Exigent circumstances embrace situations in which real, immediate, and serious consequences will certainly occur if a police officer postpones action to obtain a warrant. Welsh, 466 U.S. at 751, 104 S.Ct. 2091. Exigent circumstances affecting the validity of a warrantless entry into a residence resulting in an arrest include the following: (1) a risk of danger to the police or the victim; (2) an increased likelihood of apprehending a suspect; (3) possible destruction of evidence or contraband; (4) hot or continuous pursuit; and (5) rendering aid or assistance to persons who the officer reasonably believes are in need of assistance. See Minnesota v. Olson, 495 U.S. 91, 100, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990); Steagald v. United States, 451 U.S. 204, 218, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981); McNairy v. State, 835 S.W.2d 101, 107 (Tex.Crim.App.1991); Ramirez v. State, 105 S.W.3d 730, 743-44 (TexApp.-Austin 2003, no pet.); Beaver v. State, 106 S.W.3d 243, 247 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd); Waugh v. State, 51 S.W.3d 714, 718 (Tex.App.-Eastland 2001, no pet.). See also 40 George E. Dix & Robert O. Dawson, Texas Practice: CRIMINAL Practice and Procedure § 7.57 (2d ed.2001).

The validity of a warrantless seizure of a suspect in a constitutionally protected area is also determined by the seriousness of the offense. The warrant-less entry of a constitutionally protected area to arrest or detain a suspect for a nonjailable offense is not permissible. See Welsh, 466 U.S. at 754,104 S.Ct. 2091; see also LaHaye v. State, 1 S.W.3d 149, 152 (Tex.App.-Texarkana 1999, pet. ref'd); Winter, 902 S.W.2d at 574. However, if an offense, either a misdemeanor or a felony, is punishable by confinement and there are exigent circumstances, then it is serious enough to justify the warrantless entry of a constitutionally protected area. See generally Welsh, 466 U.S. at 754, 104 S.Ct. 2091 (a nonjailable, civil traffic offense in the absence of exigent circumstances was not sufficiently serious to allow a warrant-less entry); Waugh, 51 S.W.3d at 719 n. 3 (discussing Welsh, Winter, and LaHaye)-, LaHaye, 1 S.W.3d at 152 (the misdemean- or crime of evading arrest was a serious enough crime that officers in hot pursuit could enter a residence without a warrant and arrest an offender); Winter, 902 S.W.2d at 573-74 (a police officer could make a warrantless entry into a home if he was in hot pursuit of a suspect who committed a misdemeanor offense punishable by confinement in jail); Op. Tex. Att’y Gen. No. JM-751 (1987) (discussing constitutionality of certain subsections of article 14.03 of the Code of Criminal Procedure in situations involving warrantless arrests in certain misdemeanor cases involving family violence).

Appellant argues that the alleged assault falls under §§ 22.01(a)(3) and (c) of the Texas Penal Code, which make it punishable only by a fine. Hence, he claims his warrantless arrest for assault in the constitutionally protected area of his garage was not a serious enough offense to permit an officer to enter his residence even if exigent circumstances existed. However, while that specific provision of the assault statute is a nonjailable offense, assault, in general, and driving while intoxicated are both jailable misdemeanor offenses. See Tex. Penal • Code Ann. §§ 22.01, 49.04 (Vernon 2003 & Supp. 2004-05). Because assault is punishable by confinement in jail, it is a serious enough offense to justify the warrantless entry of a constitutionally protected area. See Illinois v. McArthur, 531 U.S. 326, 336, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001); LaHaye, 1 S.W.3d at 152; Winter, 902 S.W.2d at 573-74.

b) application of the law to the facts

The record reflects that Ms. Randolph told Officer Quillin that appellant had hit her, he had been drinking, and she thought he had gone to buy drugs. Officer Quillin testified that based upon her demeanor, statements, and actions, he believed that Ms. Randolph was afraid. At trial, Ms. Randolph contradicted Officer Quillin’s testimony stating that she told him that she was not afraid because in the past when appellant got like this, he stayed in a hotel. The trial court specifically found, when dictating its findings and conclusions into the record, that Officer Quillin’s testimony was credible regarding his belief that Ms. Randolph was afraid her husband might return to the house to assault her or continue to assault her. See Murphy v. State, 112 S.W.3d 592, 601 (Tex.Crim.App.2003), cert, denied 541 U.S. 940, 124 S.Ct. 1660, 158 L.Ed.2d 363 (2004); Ross, 32 S.W.3d at 855. In addition, the record reflects that Officer Quillin remained in the area to see if appellant returned to the house, and that while he was working on his offense report, he observed appellant return, and he followed appellant to the house. Also, Officer Quillin testified that he believed it was his duty to make contact with appellant because he was concerned that appellant might reenter the house and continue to assault Ms. Randolph.

Appellant argues that there were no exigent circumstances because Officer Quillin was not in hot pursuit of appellant. However, hot pursuit is not the only situation that may give rise to exigent circumstances. See, e.g., McNairy, 835 S.W.2d at 107; Ramirez, 105 S.W.3d at 743-44. Exigent circumstances exist when there is some danger to the officer or the victim. Based on the information known to Officer Quillin at the time and the circumstances, Officer Quillin had reason to believe that appellant (1) had been drinking and was intoxicated; (2) had kicked in the door to a bedroom to get his car keys; (3) had struck his pregnant wife on the head before driving from his residence; (4) had returned to the house shortly after the assault; and (5) posed a continuing physical threat to his pregnant wife. Further, when the officer attempted to make contact with appellant and his request to speak with appellant was disregarded, the officer had reason to believe that appellant might become angry with his wife for having called the police and physically attack his wife again.

We conclude sufficient exigent circumstances existed to warrant Officer Quillin’s limited warrantless intrusion into appellant’s garage to arrest him. Also, we conclude Officer Quillin had sufficient probable cause to arrest appellant. Officer Quillin had a “need to act quickly” under the facts presented in order to prevent appellant from engaging in any further violent attacks upon his pregnant wife. See U.S. v. Santana, 427 U.S. 38, 42, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976). The officer’s actions clearly eliminated the risk of danger to the victim. Accordingly, we conclude that Officer Quillin’s actions, even assuming an arrest of appellant, did not violate appellant’s constitutional rights.

IV. STATUTORY AUTHORIZATION TO ARREST

As an additional basis for his argument of trial court error, appellant contends Officer Quillin had no statutory authority to enter appellant’s garage and arrest him. While acknowledging the applicability of article 14.03(a)(4), appellant argues Officer Quillin could not arrest him absent probable cause to believe appellant “may cause further bodily injury” under article 14.03(a)(2).

a) applicable law

In Texas, the limited circumstances where warrantless arrests are permitted are exclusively authorized by statute. A peace officer may arrest without a warrant under article 14.03(a)(4) of the Texas Code of Criminal Procedure if the officer has probable cause to believe the following: (1) the suspect has committed an assault; (2) the victim of the assault is a member of the suspect’s family or household; and (3) the assault resulted in bodily injury to the victim. Tex.Code CRIM. PROC. Ann. art. 14.03(a)(4) (Vernon Supp. 2004-05). This provision appeal’s to be aimed at domestic violence situations, where an immediate arrest would be valuable in defusing the situation. 40 Dix & Dawson, § 9.83.

A warrantless arrest pursuant to article 14.03(a)(4) of the Texas Code of Criminal Procedure requires that the assault resulted in bodily injury to the victim. However, unlike article 14.03(a)(2), it does not require probable cause to believe there is a danger of further bodily injury to' the assault victim. See Jackson v. State, 33 S.W.3d 828, 831-32 (Tex.Crim.App.2000) (warrantless arrest was permissible under article 14.03(a)(4) where appellant was related to the murder victims). Section 1.07(a)(8) of the Texas Penal Code defines bodily injury as “physical pain, illness, or any impairment of physical condition.” Tex. Pen.Code ANN. § 1.07(a)(8) (Vernon Supp. 2004-05). The terms “physical pain,” “illness,” and “impairment of physical condition” are terms of common usage, and are not so vague that men of common intelligence must guess at their meaning and differ in their application. E.g., Ramirez v. State, 518 S.W.2d 546, 547-48 (Tex.Crim.App.1975). A fact finder may infer that a victim actually felt or suffered physical pain because people of common intelligence understand pain and some of the natural causes of it. See Wawrykow v. State, 866 S.W.2d 96, 99 (Tex.App.-Beaumont 1993, pet. ref'd); Goodin v. State, 750 S.W.2d 857, 859 (Tex.App.-Corpus Christi 1988, pet. ref'd).

b) application of the law to the facts

In order for Officer Quillin’s actions to be valid in this case, he had to have probable cause to believe appellant committed an assault against a family member that resulted in bodily injury. Tex.Code Crim. PROC. Ann. arts. 14.01(b), 14.03(a)(4) (Vernon 1977 & Supp. 2004-05). To have probable cause to believe that an offense had been committed, Officer Quil-lin did not need first-hand knowledge of appellant’s alleged assault of his wife. See Astran, 799 S.W.2d at 763.

The record shows that Officer Quillin had Ms. Randolph’s oral and written statements that appellant hit her on the back of the head to force her to relinquish the keys to his car. Because she purported to be a crime victim, Officer Quillin was permitted to presume Ms. Randolph’s statements were rehable, as long as he remained alert to the existence of any circumstances that would make that presumption inoperative. See Mungia v. State, 911 S.W.2d 164, 167 (Tex.App.-Corpus Christi 1995, no pet.). Accordingly, the trial court, as fact finder, could infer that Ms. Randolph suffered bodily injury because she felt physical pain when appellant hit her on the back of the head. See Ramirez, 518 S.W.2d at 547-48; Wawrykow, 866 S.W.2d at 99; Goodin, 750 S.W.2d at 859.

We conclude that Officer Quillin had probable cause to believe appellant had committed an assault against a family member resulting in bodily injury. Therefore, the officer was statutorily authorized to arrest appellant.

V. CONCLUSION

Appellant’s first and second issues on appeal are decided against him. The trial court’s judgment is affirmed. Tex.R.App. P. 43.2(a).

      . As appellant has not distinguished between his rights afforded under the state and federal constitutions, we address only the federal constitution. Johnson v. State, 853 S.W.2d 527, 533 (Tex.Crim.App.1992)

      . The front of the Randolphs’ house faces the street The portion of the house that faces and runs parallel to the street is approximately 140 feet to 160 feet long. The front door is located in the middle of the house and faces the street. The garage is attached to the rear of the house. The garage door faces the side of the lot. Two driveways run from the front of the house and meet in front of the garage. One driveway is shaped as an irregular "L.” It begins at the street and runs perpendicular to the street, along one side of the house and the property border. When the driveway reaches the rear of the house, it turns toward the middle of the lot and runs behind the house, parallel to the street until it reaches the garage. The second driveway does not open to the street, but begins at the sidewalk in front of the house, passes through a porte-cochere, which is part of the house’s structure, and meets the first driveway in front of the garage, at the back of the house. There are no fences around the house, but a wall, approximately seven or eight feet high, is located at the side of the house on the edge of the property between the first driveway that opens to the street and the neighboring house.

      . We take notice that throughout the reporter’s record, the trial court's statements are mistranscribed as referring to the officer's "action of circumstance.” However, it is apparent by reading the entire record and from the context of the trial court's statements that it was discussing "exigent circumstances.”

      . As emphasized in California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986), "the touchstone of Fourth Amendment analysis is whether a person has a 'constitutionally protected reasonable expectation of privacy.’ ” Id. (quoting Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring)).

      . In Payton, the Supreme Court stated that "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." Payton, 445 U.S. at 585, 100 S.Ct. 1371. The Fourth Amendment requires that searches of the home be reasonable. Illinois v. Rodriguez, 497 U.S. 177, 185-86, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990). Appellant does not complain of the officer’s movement up the driveway of the residence to the point where appellant was observed inside the garage. See U.S. v. Carter, 360 F.3d 1235, 1239-40 (10th Cir.2004).

      . Contrary to appellant’s arguments, Officer Quillin did not need to have probable cause to believe that appellant would cause further bodily injury to his wife. Appellant erroneously relies upon article 14.03(a)(2), which requires that an officer have probable cause to believe that an assault has been committed and that there is a danger of further bodily injury to the victim. Tex.Code Crim. Proc. Ann. art. 14.03(a)(2). Article 14.03(a)(2) does not apply in this case.


author: Justice CARTER.

text:
    TOSHIBA INTERNATIONAL CORPORATION, Appellant, v. Shannon HENRY and Teresa Henry, Appellees.
    No. 06-04-00002-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted Oct. 27, 2004.
    Decided Dec. 9, 2004.
    Rehearing Overruled Jan. 19, 2005.

      Jeffrey C. Lewis, Atchley, Russell, Wal-drop & Hlavinka, LLP, Texarkana, for appellant.
    W. David Carter, John R. Mercy, Mercy, Carter, Tidwell, LLP, Texarkana, for appellees.
    Before ROSS, CARTER, and CORNELIUS,⅝ JJ.
   OPINION

Opinion by

Justice CARTER.

This case has one primary issue: Did the manufacturer of a nondefective component part substantially participate in the integration of that part into a system that was found to be defective.

Shannon Henry sued Toshiba International Corporation on products liability and negligence theories to recover damages for personal injuries sustained on the job at Alcoa, an aluminum industrial facility. Teresa Henry (Teresa), Henry’s wife, also sued Toshiba alleging a derivative loss of consortium claim. Toshiba manufactured and sold to Alcoa an inverter or controller that Alcoa integrated into a larger'system. The inverter itself functioned as it was designed. The jury found for the Henrys on all liability theories and awarded damages totaling $430,610.00.

Facts

Henry worked for Alcoa, which processes raw aluminum into roll form and then paints it. The process produces scrap aluminum that is recycled onto a “scrap winder.” The scrap aluminum is taped onto the scrap winder, which is powered by an electrical system. Alcoa designed and assembled a control panel and wired it to the Toshiba inverter, which regulates the power to the scrap winder. The inverter receives electrical commands from the switches on the control panel, converts the current from alternating to direct current and then back to alternating current at variable frequencies and ultimately delivers the electricity at the proper frequency to the motor of the scrap winder to control the speed at which the winder operates. Although Toshiba manufactured the inverter, it did not design or install the control panel, wiring, or switches attached thereto. Toshiba did not make or send the control panel to Alcoa or produce the switch on the panel. Toshiba did provide a detailed manual for use in the installation of the inverter. Either Alcoa or a contractor actually designed and installed the control panel, switches, and wiring to the inverter. The inverter responded to the signals it received in the way it was designed. The inverter is designed for many different types of applications in industrial settings where regulation of the speed of a moving part is required.

The inverter was designed to allow two speed modes. The “run” mode would allow the motor being controlled to run at the speed set or programmed. It would also run at a slow or “jog” speed. Alcoa’s control panel was designed so that both the jog and run speeds were connected to the inverter by the operation of one switch. When the switch on the control panel was closed, the slow speed information was relayed to the inverter, whereas the open switch sent the information to the inverter for a fast speed. The alleged defect in the system was that, as it was configured, when an operator would request a slow speed by engaging the jog button, if a switch on the control panel was not operating properly, the switch would not close or connect and therefore improper information was sent to the inverter that a fast speed was needed. In turn, the inverter delivered the frequency to the motor, which started the motor in a fast speed when the operator was expecting a slow speed. In essence, it is alleged that the external switch gave the inverter the wrong signal.

Toshiba included a detailed manual to accompany the inverter, providing instructions and schematics to system designers and installation personnel. The inverter contained a light-emitting diode (LED) display and an operating panel with user buttons and multifunctional keys for data entry. The LED will display “1-04” or “I-00” to indicate to the operator whether the mode is jog or run, respectively, before pushing the start button.

On multiple occasions (ten to twelve times) before Henry’s accident, the scrap winder started at a faster speed when the operator selected the jog speed. There was no predictability or pattern to these malfunctions. The Alcoa electricians could not duplicate the malfunction.

On September 14, 1998, Henry was running the paint line at Alcoa. The paint line was shut down for a paint change. Henry went to the scrap winder to begin the process of recycling the scrap aluminum. He picked up the aluminum and taped it to the scrap winder using nylon tape. The aluminum gauge was heavy; Henry requested David Turney’s help.

Henry asked Turney to start the winder on the jog mode. Turney saw the switch was on the jog mode; he then waited for Henry’s signal and pushed the start button. The winder started spinning at fast speed. Henry was startled and backed away, and his pants were caught in hydraulic lines. He fell on his back and was injured.

Analysis

The four elements for a strict liability action are: (a) the product must be defective; (b) the product must reach the consumer without substantial change from the time it leaves the possession and control of the manufacturer or seller; (c) the defective condition of the product must render the product unreasonably dangerous; and (d) the unreasonably dangerous condition of the product must be the cause of the injury to the user. Restatement (Second) of Torts § 402A (1965); see Houston Lighting & Power Co. v. Reynolds, 765 S.W.2d 784 (Tex.1988); McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787, 788-89 (Tex.1967).

The manufacturer has a duty to prevent a defective product that is unreasonably dangerous from reaching a consumer and causing injury. A product may be defective as a manufacturing defect, design defect, or marketing defect. Caterpillar, Inc. v. Shears, 911 S.W.2d 379, 382 (Tex.1995). Conversely, a manufacturer has no duty to protect a consumer from a nondefective product. In order for a component part manufacturer to be responsible for the integration of its product into a larger system, which is found to be defective, it must have substantially participated in the integration of the component into the final product. Otherwise, the component manufacturer has no duty independent of the completed product assembler to analyze the completed product which incorporates its nondefective component part. See Davis v. Dresser Indus., Inc., 800 S.W.2d 869, 371 (Tex.App. — Eastland 1990, writ denied).

Does the component parts doctrine apply?

1. Design defect

Over twenty years ago, this Court held that a manufacturer of a component part that was not defective itself should not be held strictly liable when the component part is integrated into a product alleged to be defective. If the component part manufacturer does not take part in the design or assembly of the final system or product, it is not liable for defects in the final product if the component part itself is not defective. Bennett v. Span Indus., Inc., 628 S.W.2d 470, 473 (Tex.App.— Texarkana 1981, writ ref'd n.r.e.); see Koonce v. Quaker Safety Prods. & Mfg. Co., 798 F.2d 700, 716 (5th Cir.1986). This rationale is now expressed in the Restatement of Torts, which has recently been cited favorably by the Texas Supreme Court. See Bostrom Seating, Inc. v. Crane Carrier Co., 140 S.W.3d 681 (Tex.2004). The Restatement states:

One engaged in the business of selling or otherwise distributing product components who sells or distributes a component is subject to liability for harm to persons or property caused by a product into which the component is integrated if:
(a) the component is defective in itself, as defined in this Chapter, and the defect causes the harm; or
(b) (1) the seller or distributor of the component substantially participates in the integration of the component into the design of the product; and
(2) the integration of the component causes the product to be defective, as defined by this Chapter; and
(3) the defect in the product causes the harm.

Restatement (Third) of Torts § 5 (1998).

In Bostrom, a garbage truck driver sued the truck manufacturer, Crane Cairier, for personal injuries sustained in a rollover accident. Bostrom, 140 S.W.3d at 682. Crane brought a third-party action against Bostrom Seating, the manufacturer of the driver’s seat used in the truck. Id.

The court held that it was not proper to extend the doctrine of strict liability to the supplier of a component part used in a product according to the design of the product’s manufacturer when the injuries are caused by the design of the product itself, rather than by a defect in the component. Id. Thus, the issue was whether the evidence presented during trial demonstrated that the seat supplied by Bostrom to Crane was itself defective. Id. The Court found that Crane designed the garbage truck and chose which seat it would use. Id. The evidence did not prove that the Bostrom seat, in and of itself, was defective. Id. at 684. “At best, the evidence supports a possible conclusion that using the seat in this specific truck created an allegedly defective restraint system design. Crane was in total control of the design of that system, and Bostrom, playing no part in the design of the truck, cannot be held liable for its possible defectiveness.” Id. at 684-85.

Likewise, here it is clear that the inverter Toshiba manufactured and sold to Alcoa did not contain a manufacturing defect. The alleged defect is as a result of the integration of the inverter into the Alcoa scrap winding system. Accordingly, Toshiba can be held liable for a design or marketing defect only if it “substantially participated” in the integration of the inverter into the design of the scrap winder system.

Dr. William Gosney, Jr., appellees’ expert, summarized the alleged design defect as follows:

The Toshiba controller responds to a number of switches on the panel.... One switch, or one button is the start button, one button is the stop button, and there is a two-position switch that determines whether ... it’s going to be fast or slow. Those are the critical issues. If the switch that controls the speed is in the fast mode, then internally the switch does not make a connection. The controller responds to that lack of connection in such a way that when the run button is pushed the motor starts fast. If, however, the operator desires the motor to run slow, in the jog speed, the operator turns the switch to the right to the jog mode position. Internally, that causes connections within the switch to be made. The Toshiba controller will respond to that connection. It then knows internally that it’s going to be slow when the start button is pushed. When the start mode button is pushed it would then start slow. The problem that can occur is if the operator turns the switch to the slow speed, but for some reason, age, corrosion, what have you, the switch internally does not connect. The operator then expects the unit to start slow. The controller, however, has not received the electrical signal from those switches that would signify that it’s going to start slow. Therefore, when the start button is pushed, it starts fast.

The Henrys argue that, even though Toshiba did not design, manufacture, or install the scrap winder system including switches and the control panel, it did substantially participate in the integration of the component (the inverter) into the system by supplying to Alcoa a manual consisting of forty-six pages, a part of which showed how to install this inverter or how it should be wired. It also gave an 800 number to call for questions. The Henrys allege this is sufficient participation by Toshiba to make Toshiba responsible for the defect in the integrated product. We have not been cited to any authority, nor have we found any, holding that supplying an instructional manual with a product is sufficient participation in the integration of the component into the final product to subject the party to liability. The Henrys argue that the manual contains installation instructions and that Alcoa followed the manual in the installation of the system. Gosne/s testimony is inconsistent on this issue. On direct examination, Gosney stated the “control panel which is built in accordance with the instructions in the Toshiba application and user’s guide manual.... ” However, on cross-examination, when asked where the manual states how to construct the switch panel, he answered, “There are schematics given in terms of application notes of how one connects various terminals in the Toshiba, if you want to call it drive, or controller, the various switches that one would use in the panel.” Gosney further acknowledged, “It doesn’t specifically say how to design a switch panel. What it shows is how to connect the switches to make it do what you want it to do.” He further agreed the control panel could have been assembled in such a way as to avoid this accident.

Mark Rainer, Toshiba’s expert, stated Alcoa omitted an important safety feature in the design and installation of the system. Rainer stated that, “They used some information out of the manual, but I would say it’s not wired in accordance with the way we had intended for the drive to be.” He further explained that, by adding a switch on the panel, there could have been a fail-safe system and if the jog switch had failed, the whole thing would just stop. Rainer testified that the manual clearly shows that a switch can be added and this problem avoided; further it shows that the switch box could have been arranged in a fashion so that, if the jog switch did fail, there would still not have been an automatic run command. Further, Rainer said, “The way they designed the panel you can’t turn the drive off. You’re either commanding a forward or a run — or reverse rather.”

Rainer further testified:

Q And that’s a — am I correct in assuming that’s a result of the way they designed the panel and not the' way that the inverter itself is put together?
A Yes.
Q Alright.
A Now I want to be clear that it worked that way, but it wasn’t really the way that it was intended to be wired.

It is undisputed that Toshiba did not actually participate in the integration process and had no control concerning any decision made by Alcoa in the ultimate incorporation of the inverter into the overall control panel or scrap winding system. The Henrys argue that one of Toshiba’s witnesses, Steve Unger, admitted that the inverter was installed properly. However, it is clear that Unger’s testimony did not involve the control panel and switches, but referred to the internal wiring of the drive.

The facts of Bostrom are analogous to the facts of the present case. As in Bos-trom, Alcoa designed the scrap winder system, including the control panel, chose the inverter and wired it, and placed the switches on the control panel. Gosney testified that a switch failure would allow the inverter to operate at a faster speed instead of the slower speed and that this resulted in the defect. He testified there were safer alternatives that could have been implemented to prevent the kind of injury sustained by Henry. However, this evidence relates to the defectiveness of the scrap winder and control panel design, not to the specific inverter in question. At best, the evidence supports a possible conclusion that using the inverter in this specific scrap winder created an allegedly defective scrap winder system.

The Restatement of Torts gives illustrations of actions taken by a component seller that constitute substantial participation in the integration of the component into the design of another product: (1) the manufacturer or assembler of the integrated product may invite the component seller to design a component that will perform specifically as part of an integrated product, or (2) to assist in modifying the design of the integrated product to accept the seller’s component, or (3) play a substantial role in deciding which component best serves the requirement of the integrated product.

However, the Restatement further states that providing mechanical or technical services or advice concerning a component part does not, by itself, constitute substantial participation that would subject the component supplier to liability. Restatement (Third) of Toets § 5 cmt. e.

Here, there is no evidence that Toshiba was invited by Alcoa to design the component specifically as a part of the integrated product or to assist in modifying the design of the integrated product to accept the seller’s component or to decide which component best served Alcoa’s requirement. Alcoa was in total control of the design of that system. Alcoa chose the method of wiring to connect the inverter and the control panel, and chose the arrangement of switches on the control panel. Toshiba played no part in the design of the scrap winder and the control panel.

The evidence showed that Toshiba’s inverter is used in many different ways depending on the requirements of the user. It is primarily meant for industrial purposes and could be used to control the speed of a fan, conveyor, water pump, or rock crusher. Any kind of motion-driven device lends itself well to such a drive in industrial applications.

A component seller, however, is not liable for failing to incorporate a safety feature that is peculiar to the specific adaptation for which another utilizes the incomplete product. Restatement (ThiRd) of Tokts § 5. A safety feature important for one adaptation may be wholly unnecessary or inappropriate for a different adaptation. Id. Several cases illustrate this point. In Welsh v. Bowling Elec. Mach., 875 S.W.2d 569 (Mo.Ct.App.1994), a plaintiff was injured when a tram conveying passengers improperly accelerated, causing the plaintiff to be thrown in a lake. The tram was built by Havener. Havener had purchased some of the component parts, including an electrical control box, electromagnetic brake, gearbox, and a wiring diagram from Bowling Electric, the defendant. There was no contention that any of the components supplied by Bowling Electric failed to function properly. The plaintiffs theory was that Bowling Electric failed to design and include an independent safety mechanism in its component parts. The essence of the plaintiffs complaint was that Bowling failed to design or furnish parts that would safeguard against a danger created by Havener’s faulty design and construction of the other portions of the tram.

The court held Bowling had no duty to design or furnish those additional features. Havener did not invite or desire that Bowling participate in the design of the remaining portions of the tram. There was no evidence that Bowling was furnished with plans, design, or information concerning the manner in which the remaining portion of the tram would be constructed. The court found that Bowling had no duty to design or furnish those additional features.

In Smith v. Aqua-Flo, Inc., 23 S.W.3d 473 (Tex.App. — Houston [1st Dist.] 2000, pet. denied), a small child drowned in a spa when her hair became entangled in the intake covers. Aqua-Flo sold the pump for the spa. There was nothing defective about the pump itself. The Aqua-Flo pump was installed by an unrelated third party. The spa manufacturer had affixed the pump to the connecting pipes, spa inlet, and outlet openings. The plaintiff maintained that an unreasonably dangerous condition arose because the spa pump was connected to small pipes that were connected to a small inlet and outlet opening without the proper antientanglement covers. The court found that the complaint concerned the plumbing and parts related to the spa, not the pump. The component part manufacturer did not design or assemble the final product and was not liable for defects since the component was not defective. Id. (citing Davis v. Dresser Indus., Inc., 800 S.W.2d 369, 370 (Tex.App.— Eastland 1990, writ denied); Bennett, 628 S.W.2d at 472-73).

Toshiba’s product operated as it was designed. The product was not defectively manufactured. The design and installation of the control panel, switches, and wiring of the system was done by Alcoa or its contractors, over which Toshiba had no control. We hold that, as a matter of law, Toshiba’s providing this generic installation manual for a product that could be used in many applications was not sufficient participation by the component manufacturer to impose liability for a defect in the integrated system. Toshiba had no duty to the Henrys because it did not participate in the integration of its component part into the scrap winder system.

2. Marketing defect

A manufacturer of a component part is required to supply reasonable instructions and warnings to the component buyer regarding the risks associated with the use of the component product. Toshiba did provide a manual that described many hazards and contained many warnings of the general dangers attendant to the use of the inverter. The Henrys argue that Toshiba should have specifically warned Alcoa of the danger of wiring the jog and fast speed using only one switch.

The same principles apply in determining a component seller’s duty to supply reasonable instructions and warning to the component buyer. The component seller is required to provide instructions and warnings regarding risks associated with the use of the component product. See Restatement (Third) of Torts § 2(c) (1998). However,

when a sophisticated buyer integrates a component into another product, the component seller owes no duty to warn either the immediate buyer or ultimate consumers of dangers arising because the component is unsuited for the special purpose to which the buyer puts it.

Restatement (Third) of Torts § 5 cmt. a, illus. 1. To impose a duty to warn in such a circumstance would require that component sellers actively participate in the integration process. Restatement (Third) of Torts § 5.

The Restatement summarizes the component seller’s duties:

The case law imposing a duty to warn immediate buyers of general dangers attendant to use of a raw material or component is clear. Sellers of components and raw materials have a duty to provide reasonable warnings. See, e.g., Hill v. Wilmington Chem. Corp., 279 Minn. 336, 156 N.W.2d 898, 902 (1968). The issue is whether the seller of a component or raw material has a duty to inform itself about the specific applications of its component and a further duty to determine whether the buyer who will integrate it into another product is knowledgeable as to the dangers attendant to that specific application. No cases have been found imposing such an onerous duty. Indeed, the entire thrust of the case law is that when the product component is not defective in itself, liability only arises when the component seller substantially participates in the design of the final integrated product.

Restatement (Third) of Torts § 5 cmt. a, illus.6; see Crossfield v. Quality Control Equip. Co., Inc., 1 F.3d 701, 705 (8th Cm. 1993) (no duty to warn by a manufacturer of a nondefective chain which was integrated into a greater machine system that contained a design defect when the integrated machine was designed and assembled by someone other than the component part supplier); Beneway v. Super-winch, Inc., 216 F.Supp.2d 24, 28 (N.D.N.Y.2002) (manufacturer of hook supplied with winch had no duty to warn ultimate user of dangers of using hook in conjunction with overhead lifting); Shanks v. A.F.E. Indus., Inc., 275 Ind. 241, 416 N.E.2d 833, 837-38 (1981) (manufacturer of a grain dryer that was incorporated into a new grain elevator complex was not liable for failure to warn because the owner of the grain elevator was not ignorant of any of the facts concerning the operations and dangers inherent in the function of the dryer and because the defendant had no way of knowing exactly how the dryer would be employed in the grain elevator complex); Temple v. Wean United, Inc., 50 Ohio St.2d 317, 4 0.0.3d 466, 364 N.E.2d 267, 272 (1977) (plaintiff was injured when some extrusion fell onto the operating buttons of a punch press, causing it to operate; component part manufacturer of the operating búttons was not liable in strict liability for failure to warn because “the obligation that generates the duty to warn does not extend to the speculative anticipation of how manufactured components, not in and of themselves dangerous or defective, can become potentially dangerous dependent upon the nature of their integration into a unit designed and assembled by another”); Wenrick v. Schloemann-Siemag Aktiengesellschaft, 523 Pa. 1, 564 A.2d 1244, 1247 (1989) (manufacturer of electrical control system for hydraulic loader had no control over or knowledge of placement of switch near maintenance stops, and, as such, could not be strictly liable).

As stated above, Toshiba only provided a manual to install the inverter. Toshiba neither participated in the integration of nor monitored the development of the systems into which the component was integrated. The Restatement states “providing mechanical or technical services or advice concerning a component part does not, by itself, constitute substantial participation that would subject the component supplier to liability.” Restatement (ThiRd) of ToRts § 5 cmt. a, illus. 5(e). Hence, Toshiba, as a component seller, did not have a duty to warn of the potential dangerous condition dependent on the nature of integration into a system designed and assembled by another.

Negligence

The last issue concerns negligence. A manufacturer owes a duty of reasonable care to users of the products and must exercise care to discover dangerous propensities of the products. In other words, a manufacturer shall be held liable if it negligently manufactures a product that, unless carefully designed and manufactured, involves an unreasonable risk of causing harm. Gonzales v. Caterpillar Tractor Co., 571 S.W.2d 867 (Tex.1978); Otis Elevator Co. v. Wood, 436 S.W.2d 324 (Tex.1968). Negligence in the product liability context focuses on the acts of the manufacturer to determine if those .persons exercised ordinary care in the design, production, and sale of a product.

Several courts have held that, although a negligence claim requires a different showing from the strict liability claim, it is not logical for a manufacturer to be held liable for failing to exercise ordinary care when producing a product that is not defective because (1) if the product is not unreasonably dangerous because of the way it was manufactured, it was not negligent to manufacture it that way, and (2) even if the manufacturer was somehow negligent in the design or production of the product, that negligence cannot have caused the plaintiffs injury because the negligence did not render the product unreasonably dangerous. Garrett v. Hamilton Standard Controls, Inc., 850 F.2d 253, 257 (5th Cir.1988). This assumes there is no other potentially negligent conduct in such case. When a plaintiff seeks recovery because of negligence or a theory of strict liability in tort, the burden is on the plaintiff to prove that the injury resulted from a defect in the product. Simms v. Southwest Tex. Methodist Hosp., 535 S.W.2d 192, 197 (Tex.Civ.App. — San Antonio 1976, writ ref d n.r.e.).

Here, the product was not manufactured defectively. Gosney, the Henrys’ expert, testified the inverter responded to the signals it received in the way it was designed to respond. The Henrys’ counsel in his oral argument also stated that the defect of which the Henrys complain is “a design of the system” and acknowledged that the inverter itself was not defective.

We have held that, since the inverter was a component of a larger system of which Toshiba had no participation in the design, Henry’s injuries were not the result of a design defect or a marketing defect for which Toshiba is responsible. Before a negligence theory can be utilized in a products liability case, there must be proof of a defect in the product. Because there is no defect for which Toshiba is responsible, it necessarily follows that the negligence theory cannot be upheld.

Loss of Consortium

A loss of consortium claim is derivative. See Motor Express, Inc. v. Rodriguez, 925 S.W.2d 638, 640 (Tex.1996). Loss of consortium damages are recoverable only when the nonderivative claim results in physical injury. Id. Since we have sustained Toshiba’s contention that there is no defect for which Toshiba is responsible, the consortium claim also is reversed.

Conclusion

The issue addressed in the opinion is dispositive; therefore, we do not address the other points presented by Toshiba. We reverse the judgment of the trial court and render judgment in favor of Toshiba.

       William J. Cornelius, Chief Justice, Retired, Sitting by Assignment.

      . The switch was apparently manufactured by the Square D Corporation.

      . Some commentators have suggested that the crucial issue is "whether the component ... presents a danger that accompanies most or all end uses. If the component has no general use danger because it is suitable for many end-products in which the danger does not arise, then the safe use of the component ... in the finished product becomes the finished product manufacturer’s responsibility.” Edward M. Mansfield, Reflections on Current Limits on Component and Raw Material Supplier Liability and the Proposed Third Restatement, 84 Ky. L.J. 221, 228 (1995).

      . See Sexton ex rel. Sexton v. Bell Helmets, Inc., 926 F.2d 331, 335 (4th Cir.1991) (deciding that any design defect claim, whether based on negligent breach of duty of care or on strict liability, is dependent on proof of defect); ... Sprankle v. Bower Ammonia & Chem. Co., 824 F.2d 409, 413-14 (5th Cir.1987) (applying Mississippi law in stating that negligence and strict liability theories “each present the essential question whether an inadequate warning caused the plaintiff’s injuries”); Gauthier v. AMF, Inc., 788 F.2d 634, 637 (9th Cir.1986) (“Most Circuits have ... held that there is no practical difference between strict liability and negligence in defective design cases...."); Birchfield v. Int’l Harvester Co., 726 F.2d 1131, 1139 (6th Cir. 1984) (“In a defective design case ... the test for an 'unreasonably dangerous’ condition is equivalent to a negligence standard of reasonableness.... ”); Werner v. Upjohn Co., 628 F.2d 848, 857 (4th Cir.1980) (stating that distinction between strict liability and negligence should not produce different outcome in failure-to-warn cases); Chestnut v. Ford Motor Co., 445 F.2d 967, 968 (4th Cir.1971) (recognizing that standard of safely imposed on seller or manufacturer is essentially same whether theory is labeled negligence, strict liability, or warranty); Ake v. Gen. Motors Corp., 942 F.Supp. 869, 874 (W.D.N.Y.1996) ("In a design defect case the two theories of liability [strict liability and negligence] are virtually identical.”); Mather v. Caterpillar Tractor Corp., 23 Ariz.App. 409, 533 P.2d 717, 719 (1975) (upholding ruling that withheld negligence count from jury on grounds that it would be “superfluous" and confusing if included with strict liability count); Lambert v. Gen. Motors, 67 CaI.App.4th 1179, 79 Cal. Rptr.2d 657, 660 (1998) (“Where liability depends on the proof of a design defect, no practical difference exists between negligence and strict liability_”); Ogletree v. Navistar Int’l Transp. Corp., 269 Ga. 443, 500 S.E.2d 570, 572 (1998) ("The distinction between negligence and strict liability is not significant for the purposes of the risk-utility analysis.”), rev’d, 271 Ga. 644, 522 S.E.2d 467 (1999); Jones v. Hutchinson Mfg., Inc., 502 S.W.2d 66, 69-70 (Ky.1973) (“The distinction between the so-called strict liability principle and negligence is of no practical significance so far as the standard of conduct required of the defendant is concerned.”); Lecy v. Bayliner Marine Corp., 94 Wash.App. 949, 973 P.2d 1110, 1111 (1999) (seeing no practical difference between strict liability and negligence under facts of case and holding that finding of reasonably safe design in strict liability claim precludes finding of negligent design in negligence claim).
      Richard L. Cupp, Jr. & Danielle Polage, The Rhetoric of Strict Products Liability Versus Negligence: An Empirical Analysis, 77 N.Y.U.L.Rev. 874, 883 n. 35 (2002); see also Ford Motor Co. v. Miles, 141 S.W.3d 309 (Tex.App. — Dallas 2004, no pet. h.).