dissenting.
I dissent to the majority’s holding that the appellant was not “in custody” at the time he made the incriminating oral statement to Boulton. In arriving at its conclusion, the majority has misinterpreted the decisions of both this Court and the United States Supreme Court.
Article 38.22, Vernon’s Ann.C.C.P., as effective at the time appellant made his oral confession, allowed inter alia the admission of voluntary oral statements made while in custody subsequently found to be true that resulted in the discovery of any tangible evidence conducing to establish the accused’s guilt. The purpose and effect of this statute was to prevent the State from using against the accused inculpatory oral statements made by the accused while under arrest or in custody because such statements are often unreliable. Harrison v. State, 556 S.W.2d 811 (Tex.Cr.App.1977). Thus, Article 38.22, supra, was enacted as an effort to insure the accuracy and reliability of oral statements made while one is in custody or under arrest. It is uncontested in the present case that the appellant’s oral statement to Boulton did not lead to tangible evidence of his guilt; therefore, the determinative question in the present case is whether or not the appellant was “in custody” at the time he made the statement.1
The majority relies on the Supreme Court’s decision in Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977), as authority for its holding that the appellant was not “in custody.” Unlike the majority, I would not view Oregon v. Mathiason, supra, as a retreat from the basic constitutional principles enunciated in Miranda v. Arizona,2 but rather as an elucidation of those principles.
It must be initially observed that any determination of whether or not a person is “in custody” at the time he makes an incriminating statement invariably rests on the reviewing court’s subjective interpretation of the circumstances under which the statement was made. Therefore, this determination must necessarily be made on a case-by-case basis and in light of the totality of the circumstances which existed at the time of the person’s encounter with the police. Ancira v. State, 516 S.W.2d 924 (Tex.Cr.App.1974).
In Oregon v. Mathiason, supra, the Court held that since the defendant was not “in custody” under the facts of the case the police were not required to give Miranda warnings prior to the time the defendant confessed that he had stolen the property in question. The objective “facts” which led the Court to this conclusion were as follows: *418The police officer left a note at the defendant’s apartment asking the defendant to call him. When he arrived home, the defendant called the officer and the two mutually agreed to meet at the state patrol office which was two blocks away from the defendant’s apartment. When the defendant arrived, the officer shook hands with him, told him that he was not under arrest, and took him into an office and closed the door. After the officer falsely stated that the defendant’s fingerprints had been found at the scene, the defendant confessed to taking the property in question. The defendant was then permitted to leave. Under these facts the Court found that the defendant’s “. . . freedom to depart was [not] restricted in any way. He came voluntarily to the police station, where he was immediately informed that he was not under arrest. At the close of the ½-hour interview [defendant] did in fact leave the police station without hindrance. It is clear from these facts that Mathiason was not in custody ‘or otherwise deprived of his freedom of action in any significant way.’ ” Ibid at 429 U.S. 495, 97 S.Ct. 714.
It is this writer’s opinion that the present case is clearly distinguishable on the facts from Oregon v. Mathiason, supra, relied on by the majority. In the present case, the appellant was summoned to the police station by investigating officers for the purpose of questioning him concerning the offense. When he met the officers at the police station, the appellant was taken before a magistrate and given his statutory warnings pursuant to Article 15.17, Vernon’s Ann.C.C.P.3 He was then administered a polygraph test and subsequently told that he had failed and would probably be charged with the offense; he was then told to go wait alone inside a room at the police station. It was after these events had transpired that appellant gave the incriminating oral statement to Boulton. Immediately thereafter, appellant was formally arrested and placed in jail.
Officer Young’s testimony that the appellant was not in custody while he was questioned inside the room at the police station by Boulton is belied by the facts of the case. If the appellant had not been “in custody” or under arrest at the time he arrived at the police station, why else then was he administered the warning pursuant to Article 15.17, supra, which enumerates the duties of the arresting officer and magistrate? If the appellant was not “in custody” at the time he was questioned by Boul-ton, why else then was he held in the room at the police station after he was told that he had failed the polygraph test and would probably be charged with the offense? When the appellant was told by the officers to wait in the room at the police station his liberty of movement was restricted; this constitutes an arrest. “It is not the actual physical taking into custody that will constitute an arrest. An arrest is complete whenever a person’s liberty of movement is restricted or restrained.” Maldonado v. State, 528 S.W.2d 234 (Tex.Cr.App.1975); Hardinge v. State, 500 S.W.2d 870 (Tex.Cr.App.1973). At the very least, at the time he was questioned by Boulton, the appellant had been significantly deprived of his freedom of action. Miranda v. Arizona, supra; Oregon v. Mathiason, supra.
It must be recognized that any confrontation with a police officer has some coercive *419aspects to it and that not every such confrontation constitutes custodial interrogation. Oregon v. Mathiason, supra. But when the accused’s encounter with the police is accompanied by a restriction in his liberty of movement, the accused is “in custody” and, under the provisions of Article 38.22, supra, any incriminating oral statement made thereafter must subsequently prove to be true and lead to tangible evidence of guilt.
Nor can I agree with the majority’s conclusion that this Court has rejected the “focus” rule as a test for determining when an accused has been placed in custody. Bailey v. State, 532 S.W.2d 316 (Tex.Cr.App.1975) does not support this conclusion, as contended by the majority. In Bailey, the defendant voluntarily returned to the scene of the offense and initiated the conversation with the investigating officers which led to the incriminating oral statement which he later sought to exclude as evidence at trial. The investigating officers testified that at the time the defendant made the incriminating statement he and two other persons were suspects in the case and that the investigation had not yet narrowed on the defendant. In concluding that this was not a custodial interrogation and that Miranda did not apply, we held:
“As stated in Ancira v. State, Tex.Cr.App., 516 S.W.2d 924, the factor in determining the voluntariness of a statement which has consistently impressed us is ‘whether or not the focus of the investigation has finally centered on the defendant.’ Aneira, p. 927. . . . The fact that appellant had been free to go and had chosen to return in order to speak with Captain Edge removes this case from the proscription of Miranda. Had police officers begun to focus their investigation on the appellant after he had inaugurated the conversation, we would be faced with different problems.”
Thus, in Bailey v. State, supra, this Court has reaffirmed the “focus” test which the majority erroneously believes we have abandoned. Likewise, the cases of Scott v. State, 571 S.W.2d 893 (Tex.Cr.App.1978); Ford v. State, 538 S.W.2d 633 (Tex.Cr.App.1976), and Allen v. State, 536 S.W.2d 364 (Tex.Cr.App.1976), all cited by the majority, do not support the majority’s conclusion.
I would conclude that under the standards announced by Miranda and its progeny the appellant was clearly “in custody” at the time he orally confessed to Boulton, and further, that this confession did not lead to tangible evidence conducing to establish the appellant’s guilt. Therefore, the oral statement was inadmissible under the provisions of Article 38.22, supra, as it existed at that time.
The judgment should be reversed and the cause remanded.
. Boulton testified that the appellant admitted that he went to the complainant’s house armed with a pistol and with the intent to have intercourse with her; appellant also told Boulton that after he left the complainant’s house he disposed of the gun by throwing it in a bayou.
. 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
. “Art. 15.17. Duties of arresting officer and magistrate
“In each case enumerated in this Code, the person making the arrest shall without unnecessary delay take the person arrested or have him taken before some magistrate of the county where the accused was arrested. The magistrate shall inform in clear language the person arrested of the accusation against him and of any affidavit filed therewith, of his right to retain counsel, of his right to remain silent, of his right to have an attorney present during any interview with peace officers or attorneys representing the state, of his right to terminate the interview at any time, of his right to request the appointment of counsel if he is indigent and cannot afford counsel, and of his right to have an examining trial. He shall also inform the person arrested that he is not required to make a statement and that, any statement made by him may be used against him. The magistrate shall allow the person arrested reasonable time and opportunity to consult counsel and shall admit the person arrested to bail if allowed by law.”