Affirmed and Opinion Filed November 4, 2015 

S 

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 Criminal 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 counter to get him to stop crying and caused 

the child permanent brain damage. She subsequently pled guilty to serious bodily injury to a 

child with a deadly weapon pursuant to an agreement that punishment would be assessed 

between eight and twenty-two years’ imprisonment. The trial court followed the agreement and 

sentenced Lindsey to eighteen years’ imprisonment.1 

In a single appellate issue, Lindsey argues 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 prior 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 already been admitted without objection. We 

thus affirm the trial court’s judgment. 

I. Background 

 During the hearing on punishment, Detective Glen 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. The 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 squirmed around and she dropped him on the floor. 

When the doctors told her it would 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 handed 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 because it wouldn’t stop crying. 

The doctors left the room, came back in with a doll, and asked Lindsey to demonstrate 

what she did. Lindsey stood and hit the doll’s head on the table. She said, “After 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 baby tight, and she said yes, she held him really tight. 

After Lindsey gave this version 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 crying 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 there was no crib in the apartment as Lindsey had 

initially claimed. 

After the detective testified about his interview of Lindsey, the State moved to admit the 

audio tape of the interview into evidence. Defense counsel objected based on “voluntariness,” 

which the trial court overruled. 

Slade said that he spent less than an hour interviewing Lindsey. Initially, when she told 

him the child was in the room with two other people, 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 concerned 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 recalled 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 and judge of the credibility of 

witnesses in determining the voluntariness of a confession. See Delao v. State, 235 S.W.3d 235, 

238 (Tex. Crim. App. 2007). An appellate court affords great deference to a trial court’s ruling 

and will overturn the decision “only where a flagrant abuse of discretion” is shown. Id. The 

determination of whether a confession 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 statements stemming from a custodial interrogation 

unless it demonstrates the use of procedural safeguards 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 statements that result from a custodial interrogation 

without compliance with its procedural safeguards. See TEX. CODE CRIM. PROC. ANN. art. 38.22 

(West Supp. 2014). Before an investigation reaches the accusatorial or custodial stage, however, 

a person’s Fifth Amendment rights have not come into play, and the voluntariness in waiving 

those rights is not implicated. Melton v. State, 790 S.W.2d 322, 326 (Tex. Crim. App. 1990). 
 –5– 

Custodial interrogation is questioning by law enforcement officers after a person has been 

taken into custody or deprived of his or her 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 must examine all of the circumstances surrounding 

the interrogation, but the ultimate inquiry is simply whether there 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 circumstances, an objectively reasonable person would 

believe that his or her freedom of movement was restrained to the degree associated with a 

formal arrest. Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996). 

There are at least four general situations where a suspect’s detention may constitute 

custody: (1) when the suspect is physically deprived of his freedom of action in any significant 

way, (2) when a law enforcement officer tells the suspect that he or she cannot 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 significantly restricted, and (4) when 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 freedom 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 “the 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. 
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3. Were the Unwarned Statements a Product 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, however, shows no such objection. 

Instead, Lindsey objected to the admission of the audio 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 specific facts to support her claim. She also does 

not explain why the interview constituted custodial interrogation such that a mid-stream Miranda

warning was ineffective. But the record does not affirmatively demonstrate that Lindsey’s 

interview before the Miranda warnings was a custodial interrogation; thus, the voluntariness of 

her pre-warning statements does not come into play. 

The interview lasted less than an hour and was conducted in the hospital. Lindsey was 

not taken there to be interviewed, she was there when the detective arrived. There were doctors 

present and participating in the discourse at various times, and the fact that these individuals 

came in and out of the room suggests an informal setting. 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 suggest 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. Detective Slade testified that when he began the interview, Lindsey was 

only a witness—a mother who was concerned about the welfare of her 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 for 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 record does not support a conclusion that 

Lindsey was subjected to custodial interrogation, the voluntariness of her statements before 

receiving her Miranda warnings is not implicated. Therefore, 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 (Tex. Crim. App. 1993); Leday v. State, 983 S.W.2d 713, 717-18 (Tex. 

Crim. App. 1998). In his testimony, Detective Slade was permitted to summarize the interview 

with Lindsey without objection. Lindsey’s statement 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 trial court’s judgment is affirmed. 

 

Do Not Publish 

TEX. R. APP. P. 47 

140517F.U05 

 

/Bill Whitehill/ 

BILL WHITEHILL 

JUSTICE 
 –8– 

S 

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 date, the judgment of the trial court is AFFIRMED. 

Judgment entered November 4, 2015.