Bowie, 135 S.W.3d 55 stretched TRE 410(3) to cover statements made before a judge announces her decision as to punishment, so long as the plea of guilty is ultimately withdrawn. But, as Judge Cochran pointed out in dissent, no court has ever held the punishment hearing constitutes the course of a "proceeding under Fed.Rule 11" (and in fact, the Tenth Circuit says otherwise).

So here is the question.

Defendant waives trial by jury and enters an open plea of guilty. The State presents evidence as required by Art. 1.15 and the defendant is found guilty. The defendant has applied for probation. The court stops the proceeding in order to obtain a PSI. The trial recommences (three months later). The defendant testifies and acknowledges her guilt. The defendant is sentenced. The defendant files a motion for new trial based on an involuntary plea of guilty and ineffective assistance of counsel. After a hearing, a new trial is granted.

Is the defendant's testimony admissible under art. 38.22 sec. 5 which generally permits "the admission of a statement made by the accused in open court at his trial?" Or has the defendant effectively been allowed to withdraw her plea and thereby rendered her statements subject to exclusion under TRE 410(3)? Needless to say, if that is what Rule 410 says (and without any apparent reason under the circumstances), then the law is a ass- an idiot indeed. But the language of the rule refers to any statement at any proceeding. Any thoughts, anyone?