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 seconddegree 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