Full Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NOs. WR-97,579-01 & WR-97,579-02 EX PARTE KORY NICHOLAS OTTESON, Applicant ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOs. 2020-0644-A & 2020-0645-A IN THE 217th DISTRICT COURT ANGELINA COUNTY Finley, J., filed a dissenting opinion in which Parker, J., joined. DISSENTING OPINION Applicant was indicted for the third-degree offense of possession of methamphetamine, weight under one gram, within a drug free zone. See Tex. Health & Safety Code § 481.134(d). He was sentenced to five years’ imprisonment. In the instant habeas application, Applicant claims his trial counsel erroneously advised him to plead guilty with the understanding that Applicant OTTESON DISSENT — 2 would be eligible for parole within about seven months after sentencing. But the offense that Applicant pleaded guilty to actually required him to serve the entire five-year sentence without the possibility of parole. See id. § 508.145(e). In an affidavit obtained on this Court’s remand, Applicant’s trial counsel conceded that he partially erroneously advised Applicant of his parole eligibility. The habeas court recommended that this Court follow its precedent in Ex parte Moussazadeh, 361 S.W.3d 684, 690 (Tex. Crim. App. 2012), and grant relief. If this case were as straightforward as described above, certainly relief would be warranted. But this case is not that straightforward. In fact, additional information warrants the conclusion that Applicant has failed to establish by a preponderance of the evidence that but for trial counsel’s erroneous advice about his parole eligibility, he would not have pleaded guilty. I respectfully dissent. I. Additional Factual Background Contemporaneous with his plea to the drug possession offense, Applicant also pleaded guilty to a companion felony offense: tampering with evidence. Like the drug possession charge, tampering is a third-degree felony. See Tex. Penal Code § 37.09(c). Additionally, both offenses were enhanced by a prior felony conviction. Indeed, Applicant had previously been convicted on February 19, 2016, of the felony offense of assault on a peace officer. Applicant was sentenced OTTESON DISSENT — 3 to three years’ confinement for that offense. See Tex. Dep’t of Crim. J., Inmate Information Details (last visited July 20, 2026), available at https://tinyurl.com/3bb7er6x. Applicant’s indictment in the record reflects that the instant third-degree felony drug possession charge was enhanced to a second- degree felony. See Tex. Penal Code § 12.42(a) (“if it is shown on the trial of a felony of the third degree that the defendant has previously been finally convicted of a felony other than a state jail felony punishable under Section 12.35(a), on conviction the defendant shall be punished for a felony of the second degree.”). And pursuant to the plea bargain, Applicant pleaded true to this enhancement. The written plea admonishments correctly stated that the range of punishment for Applicant’s conviction was between two and twenty years’ confinement in prison. See Tex. Penal Code § 12.33(a) (“An individual adjudged guilty of a felony of the second degree shall be punished by imprisonment in the Texas Department of Criminal Justice for any term of not more than 20 years or less than 2 years.”). Lastly, Applicant had several misdemeanor cases pending at the time of his pleas. See Appendix A (Applicant’s public criminal records from Angelina County). OTTESON DISSENT — 4 Also important to the analysis is what else Applicant’s trial counsel advised him prior to his pleas. While Applicant’s trial counsel concedes that he erroneously advised Applicant, Applicant’s trial counsel also averred in his affidavit: Counsel also informed Applicant that no promises could be made with respect to when Applicant might be released on parole; that Counsel could not control or predict what the Parole Board might do, which is based on their rules and the laws governing parole; that Applicant may not be released at his first parole hearing or at any subsequent parole hearing; and that the Parole Board may require that the full sentence be served. Applicant does not refute this assertion. The trial court made a finding of fact that trial counsel advised Applicant in the manner trial counsel asserts. II. Applicable Law An applicant for a post-conviction writ of habeas corpus bears the burden of proving his claim by a preponderance of the evidence. Ex parte Torres, 483 S.W.3d 35, 43 (Tex. Crim. App. 2016). The test for ineffective assistance of counsel is set out in Strickland v. Washington, 466 U.S. 668, 687, 693 (1984). To demonstrate that he is entitled to post-conviction relief on the basis of ineffective assistance of counsel, an applicant must demonstrate that (1) counsel’s performance was deficient, in that it fell below an objective standard of reasonableness, and (2) the applicant was prejudiced as a result of counsel’s OTTESON DISSENT — 5 errors, in that, but for those errors, there is a reasonable probability of a different outcome. Torres, 483 S.W.3d at 43. Applicable here, the prejudice prong of the Strickland analysis requires an applicant to show that “there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Ex parte Aguilar, 537 S.W.3d 122, 128 (Tex. Crim. App. 2017) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). Such an applicant is required to “convince the [C]ourt that a decision to reject the plea bargain would have been rational under the circumstances.” Torres, 483 S.W.3d at 48. III. Analysis Applicant fails to meet his burden on the second Strickland prong. It is true that this Court has previously found a plea agreement in a multi-count indictment was a “package deal,” and an applicant’s successful challenge to his conviction for one count negated the entire plea bargain, thereby requiring that the parties be returned to their original positions. Ex parte Cox, 482 S.W.3d 112, 119 (Tex. Crim. App. 2016). In his unsworn declaration, Applicant avers: “If I had known that I would have to serve the full five years in prison without ever becoming eligible for parole, I would not have pled guilty, but would have insisted on going to trial.” OTTESON DISSENT — 6 Applicant’s father, Bill Otteson, signed an affidavit which similarly states: “I know that, if [Applicant] had known that he would have to serve the full five years in prison without ever becoming eligible for parole, he would not have pled guilty, but would have insisted on going to trial.” But these assertions are insufficient for two reasons. First, trial counsel’s unrefuted affidavit calls into serious doubt Applicant’s recollection of the facts of his own case. Trial counsel’s affidavit avers that “Applicant has a lengthy history of drug use, suicidal ideations, and violent/threatening conduct,” that Applicant “exhibit[ed] bizarre behavior” during the course of trial counsel’s representation of Applicant, and that Applicant “suffered from significant mental health conditions,” prompting trial counsel to file a suggestion of incompetency. Trial counsel states that “[b]ecause of [these] mental health issues and his bizarre behavior,” trial counsel does not believe that “Applicant is a reliable historian with respect to the advice [that trial c]ounsel provided to him.” Second, nowhere in either of these two affidavits (or anywhere in the writ record for that matter) does Applicant discuss his contemporaneous plea of guilty and conviction for tampering. This calls into serious question Applicant’s unsworn assertion that he would not have pleaded guilty and instead would have insisted on a trial but for counsel’s advice. OTTESON DISSENT — 7 Moreover, Applicant received a really good bargain. Trial counsel’s affidavit states that the State’s initial offer in these cases was ten years’ confinement. This offer was “not subject to negotiation.” Counsel states that “Applicant had repeatedly expressed his concern that because of his criminal history, he would have to serve most, if not all, of any sentence imposed. For this reason, Applicant had steadfastly refused to accept any double-digit plea offer.” Trial counsel states that during a November 9, 2023, meeting with Applicant in jail, Applicant rejected the State’s ten-year offer but stated that he “would accept a probated sentence or a lower prison sentence.” Trial counsel then negotiated a five-year prison sentence on both cases that Applicant eventually accepted by pleading guilty. Neither Applicant nor Applicant’s father refute any of the above information. This timeline further calls into question Applicant’s assertion that he would not have pleaded guilty to the offenses and insisted on a trial. Applicant faced two to twenty years’ confinement for each offense if convicted at trial. The State offered five years’ confinement in exchange for Applicant pleading guilty to both charges, a sentence near the lower end of the available range of punishment should Applicant have been convicted at trial. The offered sentence was also in line with the length of sentence that Applicant had told his trial counsel he was willing to accept because he was concerned about his OTTESON DISSENT — 8 parole eligibility due to his prior conviction for assault on a peace officer. Applicant does not state that he would not have pleaded guilty to the package deal—in fact, neither Applicant nor his father make any mention of the other pending charges against Applicant at the time of his pleas. And trial counsel told Applicant that no promises could be made about his parole eligibility. On this record, I am unconvinced that but for counsel’s errors, Applicant would not have pleaded guilty and would have instead insisted on going to trial. IV. Conclusion Applicant fails to establish by a preponderance of the evidence that but for trial counsel’s erroneous advice about his parole eligibility that he would not have pleaded guilty in exchange for the State’s “package deal” and rather would have insisted on going to trial. Applicant had incentive to do so and received a really good bargain from the State. Because Applicant fails to meet the second prong of the Strickland analysis, I respectfully dissent. Filed: September 17, 2026 Publish OTTESON DISSENT — 9 Appendix A Record Count: 43 Search By: Defendant Party Search Mode: Name Last Name: otteson First Name: kory All All Sort By: Filed Date Case Citation Defendant Info Filed/Location Type/Status Charge(s) Number Number 602-96 OTTESON, KORY 05/23/1996 Adult Misdemeanor POSS MARIJ NICHOLAS County Court at Law Disposed <2OZ 03/21/1979 #1 1364-96 OTTESON, KORY 11/06/1996 Adult Misdemeanor TERRORISTIC NICHOLAS County Court at Law Disposed THREAT 03/21/1979 #1 1364-96 OTTESON, KORY 05/15/1998 Adult Misdemeanor MOTION TO NICHOLAS County Court at Law Disposed REVOKE 03/21/1979 #1 PROBATION TERRORISTIC THREAT CR-20017 OTTESON, KORY 06/25/1998 Adult Felony POSS MARIJ <= NICHOLAS 159th Judicial District Disposed 5LBS > 4OZ 03/21/1979 Court 22580 OTTESON, KORY 08/28/1999 Adult Misdemeanor CRIM NICHOLAS County Court at Law Posted MISCH>=$500<$1, 03/21/1979 #2 500 06-90430-2 2058 OTTESON, KORY 06/07/2006 Traffic EXPIRED NICHOLAS JP2 DIS2 DRIVER’S 03/21/1979 LICENSE 06-90429-2 K124272 OTTESON, KORY 06/20/2006 Traffic FAILED TO NICHOLAS JP2 Proof of Financial MAINTAIN 03/21/1979 Responsibility FINANCIAL RESPONSIBILITY 07-24347-3 L515013 OTTESON, KORY 05/22/2007 Traffic FAILED TO NICHOLAS JP3 Proof of Financial MAINTAIN 03/21/1979 Responsibility FINANCIAL RESPONSIBILITY 07-24348-3 L515013 OTTESON, KORY 05/22/2007 Traffic DISPLAY NICHOLAS JP3 Dismissed EXPIRED 03/21/1979 LICENSE PLATES 24347-3A L515013 OTTESON, KORY 06/13/2007 Failure to Appear FAILURE TO NICHOLAS JP3 Dismissed APPEAR 03/21/1979 10-27786-3 TX10040FTH0 OTTESON, KORY 01/11/2010 Traffic SPEEDING - 80 02 NICHOLAS JP3 Paid Fine MPH/60 MPH 03/21/1979 10-0600 OTTESON, KORY 05/14/2010 Adult Misdemeanor TERRORISTIC NICHOLAS County Court at Law Dismissed THREAT OF 03/21/1979 #1 FAMILY/HOUSEH OLD 10-M-10791 OTTESON, KORY 05/17/2010 Adult Misdemeanor TERRORISTIC NICHOLAS JP1 Transferred to County THREAT 03/21/1979 Court INTERRUPT PUBLIC PLACE 10-1173 OTTESON, KORY 09/10/2010 Adult Misdemeanor DRIVING WHILE NICHOLAS County Court at Law Disposed INTOXICATED 03/21/1979 #1 10-1174 OTTESON, KORY 09/10/2010 Adult Misdemeanor POSS MARIJ NICHOLAS County Court at Law Dismissed <2OZ 03/21/1979 #2 10-1175 OTTESON, KORY 09/10/2010 Adult Misdemeanor TERRORISTIC NICHOLAS County Court at Law Dismissed THREAT AGAINST 03/21/1979 #2 PUBLIC SERVANT OTTESON DISSENT — 10 10-1631 OTTESON, KORY 12/08/2010 Adult Misdemeanor POSS MARIJ NICHOLAS County Court at Law Disposed >2OZ<=4OZ 03/21/1979 #2 11-0030 OTTESON, KORY 01/06/2011 Adult Misdemeanor POSS NICHOLAS County Court at Law Disposed MARIJUANA <= 2 03/21/1979 #1 OZ 11-30041 OTTESON, KORY 01/06/2011 Felony Complaint POSS CS PG 1 NICHOLAS JP1 Transferred to District <1G 03/21/1979 Court 13-6924-2 TX13700ICA0 OTTESON, KORY 09/16/2013 Traffic NOT SECURED 02 NICHOLAS JP2 Dismissed BY SEATBELT - 03/21/1979 DRIVER 13-6925-2 TX13700ICA0 OTTESON, KORY 09/16/2013 Traffic DRIVING WHILE 02 NICHOLAS JP2 Dismissed LICENSE INVALID 03/21/1979 14-10169-2 28235 OTTESON, KORY 11/05/2014 Traffic FAIL TO YIELD NICHOLAS JP2 Disposed ROW (STOP 03/21/1979 SIGN/YIELD SIGN/DEVICE) 15-11059-2 28846 OTTESON, KORY 02/20/2015 Traffic PUBLIC NICHOLAS JP2 Dismissed INTOXICATION 03/21/1979 2015-0159 OTTESON, KORY 03/27/2015 Adult Felony CRIMINAL NICHOLAS 159th Judicial District Dismissed MISCHIEF 03/21/1979 Court >=$1,500<$20K 15-5530-3 00142-803 OTTESON, KORY 07/15/2015 Traffic SPEEDING NICHOLAS JP3 Disposed 03/21/1979 15-1407 OTTESON, KORY 10/20/2015 Adult Misdemeanor RESIST ARREST NICHOLAS County Court at Law Disposed SEARCH OR 03/21/1979 #2 TRANSPORT 15-1442 OTTESON, KORY 10/28/2015 Adult Misdemeanor RESIST ARREST NICHOLAS County Court at Law Disposed SEARCH OR 03/21/1979 #2 TRANSPORT 2015-0813 OTTESON, KORY 11/02/2015 Adult Felony ASSAULT PUBLIC NICHOLAS 159th Judicial District Disposed SERVANT 03/21/1979 Court ASSAULT PUBLIC SERVANT BAIL JUMPING AND FAIL TO APPEAR FELONY THEFT PROP >=$2,500<$30,000 15-1466 OTTESON, KORY 11/04/2015 Adult Misdemeanor POSS MARIJ NICHOLAS County Court at Law Disposed <2OZ 03/21/1979 #2 2015-0929 OTTESON, KORY 12/29/2015 Adult Felony STALKING NICHOLAS 159th Judicial District Dismissed 03/21/1979 Court 17-8686-3 TX4YUA0YLG OTTESON, KORY 08/31/2017 Traffic SPEEDING (10% M2 NICHOLAS JP3 Disposed or More above 03/21/1979 posted speed limit) 18-10002-3 18 16475 OTTESON, KORY 06/04/2018 Traffic EXPIRED NICHOLAS JP3 Disposed REGISTRATION 03/21/1979 18-10003-3 18 16475 OTTESON, KORY 06/04/2018 Traffic EXPIRED OR NO NICHOLAS JP3 Disposed LICENSE PLATE 03/21/1979 (MOTORCYCLE) 18-10004-3 18 16475 OTTESON, KORY 06/04/2018 Traffic POSSESSION OF NICHOLAS JP3 Disposed DRUG 03/21/1979 PARAPHENALIA (18 YOA or older) OTTESON DISSENT — 11 18-0800 OTTESON, KORY 06/06/2018 Adult Misdemeanor POSS CS PG 2-A NIKOLAS County Court at Law Disposed <= 2OZ 03/21/1979 #1 18-0801 OTTESON, KORY 06/06/2018 Adult Misdemeanor RECKLESS NIKOLAS County Court at Law Dismissed DRIVING 03/21/1979 #1 18-1432 OTTESON, KORY 10/26/2018 Adult Misdemeanor ASSAULT NIKOLAS County Court at Law Dismissed CAUSES BODILY 03/21/1979 #2 INJ 18-1433 OTTESON, KORY 10/26/2018 Adult Misdemeanor TERRORISTIC NIKOLAS County Court at Law Dismissed THREAT CAUSE 03/21/1979 #2 FEAR OF IMMINENT SBI 19-0281 OTTESON, KORY 03/04/2019 Adult Misdemeanor CRIMINAL NICHOLAS County Court at Law Dismissed TRESPASS MB 03/21/1979 #1 20-0674 OTTESON, KORY 07/02/2020 Adult Misdemeanor DRIVING WHILE NICHOLAS County Court at Law Disposed INTOXICATED 03/21/1979 #1 2020-0644 OTTESON, KORY 09/17/2020 Adult Felony POSS CS PG 1 NICHOLAS 217th Judicial District Disposed <1G DRUG FREE 03/21/1979 Court ZONE 2020-0645 OTTESON, KORY 09/17/2020 Adult Felony TAMPER NICHOLAS 217th Judicial District Disposed FABRICATE 03/21/1979 Court PHYSICAL EVID W/INTENT TO IMPAIR 23-15839-3 31259 OTTESON, KORY 03/20/2023 Traffic DWLI - DRIVING NILHOLAS JP3 Disposed WHILE LICENSE INVALID - JP