Affirmed and Opinion Filed November 4, 2015 

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In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-14-00517-CR ARIANNA LINDSEY, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the Crimin al District Court No. 3 Dallas County, Texas Trial Court Cause No. F-1171158-J 

### MEMORANDUM OPINION Before Justices Lang, Evans, and Whitehill Opinion by Justice Whitehill Lindsey hit her baby’s head on the kitchen c ounter to get him to stop crying and caused the child permanent brain damage. She subsequen tly pled guilty to serious bodily injury to a child with a deadly weapon pur suant to an agreement that punishment would be assessed between eight and twenty-two years’ imprisonmen t. The trial court followed the agreement and sentenced Lindsey to eight een years’ imprisonment. 1 In a single appellate issue, Lindsey argue s the trial court abused its discretion by admitting an audio tape of an “interrogation” because the “mid-stream” Miranda warnings did not cure the taint of a pr ior unwarned interrogation.

1 Lindsey did not waive her right to appeal as part of the agreement.–2– Because we conclude there was no custodial interrogation, the trial court did not err in overruling Lindsey’s objection that the audio tape was inadmissible because her statements were involuntary. Moreover, the same evidence had al ready been admitted without objection. We thus affirm the trial court’s judgment. I. Background During the hearing on punishment, Detective Gl en Slade testified without objection. He said that he received a call from Children’s Hospital about a child who suffered severe head injuries. Lindsey, the mother, was already at the hospital when Slade arrived so he took her into an interview room to talk to her. Th e interview was recorded by audio recorder. Lindsey initially told him that she put the baby to bed in his crib at about nine o’clock the night before and found him crying on the floor at about nine the next morning. The baby would not stop crying, so she woke her mother up. They noticed that the baby had a knot on his head, so they called an ambulance. At that point, Slade knew that the child was in ICU and had a cracked skull and subdural hemorrhaging, so he did not think this version of the events explained the child’s injuries. Two doctors came into the room where Lindsey was being interviewed because they were concerned that the child might have liver damage and had some questions. They described the injuries to Lindsey and told her it was not possible for the child to have sustained these injuries by falling out of a crib. The doctors asked if she had squeezed the baby. Lindsey then said she was in the kitchen making a bottle for the baby and he had squi rmed around and she dropped him on the floor. When the doctors told her it w ould take a lot more force than that to cause the injuries in question, Lindsey then stated that she was holding the baby in the kitchen and hit the baby’s head on the counter as she turned.–3– One doctor explained to Lindsey how hard of an impact there would need to be to cause the kind of damage the child had. Slade hande d Lindsey a notebook and asked her to show them what she did. Lindsey picked up the notebook and slammed it on the table, and then said she hit the baby’s head on the counter be cause it wouldn’t stop crying. The doctors left the room, came back in w ith a doll, and asked Lindsey to demonstrate what she did. Lindsey stood and hi t the doll’s head on the table. She said, “A fter I hit his head on the counter, he didn’t stop crying, so I did it again and he didn’t stop crying.” The doctors asked Lindsey about holding the ba by tight, and she said yes, sh e held him really tight. After Lindsey gave this versi on of events, Slade asked her to write a statement. She agreed, and was informed of her rights before doing so. Lindsey’s statement was admitted into evidence without objection. 2 Lindsey’s statement says: I was trying to get my baby to stop cryi ng but he wouldn’t so I hit his head on the counter about two times then after I did that I called 911. On the same day he interviewed Lindsey, Slade visited the apartment where the crime occurred. He took pictures of the apartment, and these pictures were admitted into evidence without objection. The detective observed that ther e was no crib in the apartment as Lindsey had initially claimed. After the detective testified about his interv iew of Lindsey, the State moved to admit the audio tape of the interview in to evidence. Defense counsel objected based on “voluntariness,” which the trial court overruled. Slade said that he spent less than an hour intervie wing Lindsey. Initially, when she told him the child was in the room with two other peopl e, they were the primary suspects, not her.

2 Defense counsel initially objected, but subsequently withdrew the objection.–4– He just viewed Lindsey as a mother who was c oncerned about her child. Slade did not become suspicious until the fourth version of the story— when Lindsey said she hit the baby’s head on the counter. Detective Slade reca lled that he had even asked her if she was trying to protect someone. After Lindsey told him her final version of the story and he became suspicious, he gave her the Miranda warnings. II. Analysis 1. Standard of Review The trial court is the sole and exclusive trier of fact a nd judge of the credibility of witnesses in determining the vo luntariness of a confession. See Delao v. State, 235 S.W.3d 235, 238 (Tex. Crim. App. 2007). An appellate court a ffords great deference to a trial court’s ruling and will overturn the decision “only where a flagrant abuse of di scretion” is shown. Id. The determination of whether a confe ssion is voluntary must be made by examining the totality of the circumstances. Id.; see also Woodruff v. State, 330 S.W.3d 709, 732(Tex. App.—Texarkana 2010, pet. ref’d). 2. Custodial Interrogation The State may not use a defendant’s statemen ts stemming from a custodial interrogation unless it demonstrates the use of procedural safe guards effective to secure the privilege against self-incrimination. Miranda v. Arizona , 384 U.S. 436, 444 (1966). Article 38.22 of the code of criminal procedure also precludes the use of statem ents that result from a custodial interrogation without compliance with its procedur al safeguards. See T EX
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. art. 38.22 (West Supp. 2014). Before an inve stigation reaches the accusatorial or custodial stage, however, a person’s Fifth Amendment rights have not come into play, a nd the voluntariness in waiving those rights is not implicated. Melton v. State , 790 S.W.2d 322, 326 (T ex. Crim. App. 1990).–5– Custodial interrogation is ques tioning by law enforcement officers after a person has been taken into custody or deprived of his or he r freedom of action in any significant way. Miranda , 384 U.S. at 444; Herrera v. State , 241 S.W.3d 520, 525 (Tex. Crim . App. 2007). To determine whether an individual was in custody, a court mu st examine all of the circumstances surrounding the interrogation, but the ul timate inquiry is simply whether ther e was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. Stansbury v. California , 511 U.S. 318, 322 (1994); Estrada v. State , 313 S.W.3d 274, 294 (Tex. Crim. App. 2010). A person is in custody only if, under the circumst ances, an objectively reasonable person would believe that his or her freedom of movement wa s restrained to the degree associated with a formal arrest. Dowthitt v. State , 931 S.W.2d 244, 254 (T ex. Crim. App. 1996). There are at least four general situations where a suspect’s detention may constitute custody: (1) when the suspect is physically depriv ed of his freedom of ac tion in any significant way, (2) when a law enforcement o fficer tells the suspec t that he or she ca nnot leave, (3) when law enforcement creates a situation that would lead a reasonable person to believe that his or her freedom of movement has been si gnificantly restricted, and (4) wh en there is probable cause to arrest and law enforcement officers do not tell the suspect that he or she is free to leave. Id . at 255; McCulley v

. State , 352 S.W.3d 107, 115–16 (Tex. App.—Fort Worth 2011, pet. ref’d). In the first three situations, the restriction on fr eedom of movement must amount to a degree associated with arrest rather than investigative detention. Dowthitt , 931 S.W.2d at 255; McCulley , 352 S.W.3d at 116. The defendant bears the initial burden of proving that a statement was the product of “custodial interrogation.” Herrera , 241 S.W.3d at 526. Thus, the State has no burden at all unless “t he record as a whole clearly establishe[s]” that the defendant’s statement was the product of custodial interrogation by an agent for law enforcement. Id

.–6– 3. Were the Unwarned Statements a Pr oduct of Custodial Interrogation? Lindsey contends that she made a trial objection that she “was subjected to custodial interrogation prior to being read [her] rights.” The record, how ever, shows no such objection. Instead, Lindsey objected to the admission of the a udio tape “based on the voluntariness” of it. Although Lindsey asserts that the questions posed by the detective “were clearly designed to elicit a confession,” she fails to identify any speci fic facts to support her claim. She also does not explain why the interview constituted cust odial interrogation such that a mid-stream Miranda warning was ineffective. But the record does not affirmatively demons trate that Lindsey’s interview before the Miranda warnings was a custodial interr ogation; thus, the voluntariness of her pre-warning statements does not come into play. The interview lasted less than an hour a nd was conducted in the hospital. Lindsey was not taken there to be interviewe d, she was there when the detect ive arrived. There were doctors present and participating in the discourse at va rious times, and the fact that these individuals came in and out of the room suggests an informal se tting. The record is silent as to whether the room had windows or more than one door. There is no evidence that the door was locked, or that Lindsey was informed that she couldn’t leave. Lindsey was not under arrest , and there is nothing to s uggest that her freedom of movement was restricted in any way or that she was not free to terminate the interview and leave the room at any time. Detectiv e Slade testified that when he began the interview, Lindsey was only a witness—a mother who was concerned a bout the welfare of he r child. Even when Lindsey gave conflicting versions of events, the detective said he did not suspect Lindsey. Instead, he thought she might be covering up fo r someone. The interview was conversational and non-confrontational, and there is no evidence that Lindsey was denied food, water, or use of the facilities.–7– It was not until Lindsey gave her final version of events and said that she hit the baby’s head on the counter because he wouldn’t stop crying that she became a suspect. She was Mirandized immediately thereafter. Because the r ecord does not support a conclusion that Lindsey was subjected to custodi al interrogation, the voluntarine ss of her statements before receiving her Miranda warnings is not implicated. Theref ore, the trial court did not abuse its discretion in admitting the audio tape of the interview. Moreover, even had the admission of the audio tape been error, Lindsey was not harmed because substantially the same evidence was admitted without objection. See Hicks v

. State , 860 S.W.2d 419, 430-31 (Te x. Crim. App. 1993); Leday v. State , 983 S.W.2d 713, 717-18 (Tex. Crim. App. 1998). In his testimony, Detective Sl ade was permitted to summarize the interview with Lindsey without objection. Lindsey’s st atement was then admitted without objection. Therefore, even if the audio tape was improperly admitted, there is no reversible error. Id. Lindsey’s issue is overruled. The tr ial court’s judgment is affirmed.

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
ARIANNA LINDSEY, Appellant
No. 05-14-00517-CR V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court No. 3, Dallas County, Texas Trial Court Cause No. F-1171158-J. Opinion delivered by Justice Whitehill. Justices Lang and Evans participating. Based on the Court’s opinion of this da te, the judgment of the trial court is AFFIRMED

. Judgment entered November 4, 2015.