effective to secure the privilege against self-incrimination.” Miranda

v. Arizona, 384 U.S. 436, 444 (1966). “For Miranda safeguards to attach, two threshold

issues must be met: 1) the suspect must have been ‘in custody,’ and 2) the police must

have ‘interrogated’ the suspect.” Little v. State, 853 S.W.2d 179, 183 (Tex. App.–Corpus

Christi 1993, no pet.). “[T]he term ‘interrogation’ under Miranda refers not only to express

questioning, but also to any words or actions on the part of the police (other than those

normally attendant to arrest and custody) that the police should know are reasonably likely



        W hile cross-examining Officer Robin, defense counsel asked him, “After she [appellant] woke up, she
wasn’t slurring her speech, was she?” Officer Robin replied, “I said, do you want to take the field sobriety
tests. She said no. She said that she didn’t have any weapons and wanted a lawyer. W asn’t a whole lot of
speech once she was out of her vehicle.”

                                                    13
to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291,

300-301 (1980) (footnotes omitted).         The Fifth Amendment “bar[s] police-initiated

interrogation of an accused who, in the context of custodial interrogation, has previously

asserted his right to counsel during such interrogation, unless the accused’s counsel is

actually present.” Hughen v. State, Nos. PD-1123-08, 1124-08, 2009 WL 3189187, at *4

(Tex. Crim. App. Oct. 7, 2009) (citing Minnick v. Mississippi, 498 U.S. 146, 153 (1990)).

       Article 38.22 of the code of criminal procedure generally precludes the use of

statements that result from custodial interrogation absent compliance with its procedural

safeguards. TEX. CODE CRIM. PROC. ANN. art. 38.22, § 2 (Vernon 2005). However, Article

38.22, Section 5 specifically exempts “a statement that does not stem from custodial

interrogation. . . .” Id. § 5. Thus, if appellant’s statements