dissenting.
I respectfully dissent.
The day following the discovery of Lauren Chapel’s murder, appellant was taken to the police department by two detectives for questioning. Although ostensibly not in custody at that time, the officers read appellant his Miranda1 warnings before questioning him, and again when the questioning concluded. Two days later he returned to the police station at the officers’ request and was again read his Miranda warnings before being questioned by the police and the district attorney. After being questioned on two separate occasions that day, he gave a statement and was allowed to leave. Three days later he appeared before the grand jury in response to a subpoena. Before testifying in front of the grand jury, he was read his Miranda warnings. The record reflects that the district attorney did not ask the grand jury to vote on an indictment on that occasion. Accordingly, no indictment was returned. Immediately after the hearing, the investigator asked the district attorney what else he needed for an indictment, and the district attorney replied that he needed an eyewitness account or a confession from appellant.
Accordingly, ten days later, the investigator called appellant and told him that Mr. Filley, the district attorney, wanted to talk to him at the courthouse. Appellant agreed to go, but since he showed up at the courthouse around closing time, an appointment was made for the following day. The next day the investigator called appellant when he failed to appear for the scheduled appointment. Appellant stated he had overslept, but agreed to go see Filley as soon as he got ready, which he did. It was at this meeting where Filley would seek to obtain the confession that he wanted. To accomplish this, Filley decided to video tape his interrogation of appellant, without informing him of his plans. It is curious that at all of his previous non-custodial interrogations, appellant was read his Miranda rights before being questioned, yet at this most critical time when the admitted purpose of the meeting was to obtain a confession, the district attorney intentionally decided not to inform appellant that his Miranda rights were still available to him.
The investigator admitted at the suppression hearing that appellant was the prime suspect from day one. Accordingly, the focus of the investigation centered upon him *744from the beginning. Admittedly, Filley informed appellant at the beginning of the interrogation that he would not be arrested right now and that he would be allowed to go home after the questioning. Filley testified at the suppression hearing that allowing White to leave after the interrogation was a tactical decision, and at any rate, White did not present an escape risk. These were the circumstances that existed before the video tape interrogation of White began.
Admission of the video tape confession depends on whether the circumstances surrounding White’s interrogation were such that he became the subject of a custodial interrogation so as to require that he be read the warnings required by Miranda or article 38.22 § (2). Tex.Code Cmm. PROC. Ann. art. 38.22 § 2 (Vernon 1979). White was not formally arrested after his arrival for the meeting. However, a person need not be under formal arrest in order to be custody. Melton v. State, 790 S.W.2d 322, 325 (Tex.Crim.App.1990). In Texas, the four factors that will determine whether a person is the subject of a custodial interrogation are the following: 1) focus of the investigation; 2) subjective intent of the police; 3) probable cause to arrest; and 4) subjective intent of the accused. Id., Ruth v. State, 645 S.W.2d 432, 435 (Tex.Crim.App.1979).2 The initial determination of custody, however, depends on the objective circumstances of the interrogation. Stansbury v. California, 511 U.S. 318, -, 114 S.Ct. 1526, 1529, 128 L.Ed.2d 293 (1994). In the instant case, it is undisputed that the state’s objective was to obtain a confession from appellant.
Factors one and two, where disclosed to the individual being questioned, are only relevant to the extent they would affect how a reasonable person in that position would gauge the breadth of his or her “freedom of action”. Stansbury, 511 U.S. at -, 114 S.Ct., at 1530. Communication is crucial because this is the only manner in which a suspect can understand his situation. Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 3151, 82 L.Ed.2d 317 (1984). In the instant case, White was immediately told that the grand jury investigation clearly showed that he had committed the crime, and that the only remaining question before an indictment could be returned was an explanation of why he had committed the offense. Although told he would not be arrested then, he was told that he would be indicted. The record shows that when White would not admit to shooting Ms. Chappel, and stated he did not wish to answer certain questions, Filley told White that was not a question anymore and persisted with his questioning. When Filley completed his interrogation, he told White he could give his investigator a statement, “then you can go home.”
The record also shows that White believed that he was in custody whenever he was being questioned by the police. When Filley told White that he was not under arrest, "White seemed incredulous and replied, “No?” Filley asked White when had he consulted with an attorney, White’s reply was, "... You know, when I first got in custody.” After disclosing to Filley that he had consulted with an attorney, "White believed Filley had gotten mad and told Filley: “I don’t want you to get mad though”; “I don’t want you to throw me in jail”. Obviously, White believed that he was in custody, especially when Filley isolated him in the basement of the courthouse for purposes of extracting the confession.
Fille/s and the investigator’s testimony at the suppression hearing shows that the interrogation was for one purpose and one purpose only: to obtain a confession from appellant. In effect, that purpose was indirectly communicated to "White. He was told that the investigation clearly showed he had committed the offense and that he would be indicted, except that he would not be arrested right now. On numerous occasions when he sought not to answer the most incriminating questions, Filley ignored him and insisted that he had to tell “why” he had committed the offense. Under those circumstances, a reasonable person would have felt that he was not at liberty to terminate the interroga*745tion and leave. This answers the second inquiry under Thompson v. Keohane, — U.S. -, -, 116 S.Ct. 467, 465, 133 L.Ed.2d 383 (1995).
Given these circumstances, I would hold under Melton and Thompson v. Keohane, that the video tape confession was the product of a custodial interrogation which required the reading of Miranda rights to appellant, without which, the confession could not have been freely, knowingly nor voluntarily given.
Accordingly, I would hold that the trial court erred in admitting the confession, reverse the conviction and remand the case to the trial court for re-trial.
YANEZ, J., joins the dissent.
. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
. While the majority notes that this test has been questioned, see Lee v. State, 893 S.W.2d 80, 85 n. 2 (Tex.App.—El Paso 1994, no writ); nevertheless, it is still the precedent we must be guided by.