A defendant is in custody for 38.22 purposes where he has been arrested and indicted–even if he voluntarily accompanies law enforcement to a police station for the purposes of a polygraph exam and subsequently makes incriminating statements based on the exam results.
In Custody and Indicted for Miranda Rights Purposes
The fact the defendant voluntarily submitted to the polygraph examination had no bearing on restriction the State had placed on his freedom.
A defendant’s spontaneous oral statements to police about a dream where the defendant pictured with great detail the murder scene were admissible even though they were not recorded. Also, there is a case out of San Antonio where the State was allowed to admit an officer’s memory of a defendant’s statement, as long as it was not the result of custodial interrogation. The officer’s memory concerning what the defendant had written in a notebook several years earlier was admissible, even thought the notebook had long since been destroyed in a Houston case.