Through the Window: The Terrifying True Story of Cross-Country Killer Tommy Lynn Sells (St. Martin's True Crime Library)

by Diane Fanning

  Later during this same group of witnesses, he wrote to Gonzales, “No fight in Bobby.”

  On the morning of Thursday, September 14, after just three days of testimony, the prosecution announced completion of its presentation. The jury retired from the courtroom as the defense made a request for an instructed verdict of not guilty on the capital murder charge.

  Garcia cited the legal need for independent evidence showing that the crime in a confession actually was committed. He argued that the State had not presented any evidence to demonstrate aggravated sexual assault. The State argued that, although their expert could not testify that a sexual assault was a fact, her testimony—and the statements of others—was consistent with sexual assault.

  When the request of the defense was denied, the jurors returned to the courtroom. The defense did not call any witnesses. They simply rested their case. Closing arguments were scheduled for the next Monday, September 18.

  FRED Hernandez threaded his arguments in and out of a summation of instructions to the jury. He addressed the jury with passionate eyes, hard-hitting words and an erect posture. “I want you to remember this throughout your deliberations. Actions speak louder than words. We have all heard that phrase before. People can say one thing and, with their actions, mean, do and intend something totally different—and that is what this case is about. This case comes down to: What did the defendant, Tommy Lynn Sells, intend to do the night of December thirtieth of 1999, going into the early morning hours of December thirty-first, 1999.”

  Sells scribbled on his legal pad, “If the truth was in Fred, he would fall over.”

  “We listened to his confessions. You saw the videos. Actually, you saw two videos, and then you saw two written statements as well. Pay attention to what he says and how he says it in there. [ . . . ] you have a written statement, State’s Exhibit Four and Five [ . . . ] and they contain details. However, they cannot convey to you how you say it, how the words are flowing, what his emotions were as he provided the information. But I tell you what,” he held a videocassette in the air, “when I played this video for you where he confessed, you got to see what Tommy Lynn Sells was really about, because then you got to hear it in his own words, how he sat there so calm, so cool, so calculating, with callous indifference. You got to see the real Tommy Lynn Sells in that video.”

  Hernandez summarized the testimony of the witnesses who saw Sells in the hours before the attack. “The defendant knew exactly what he was doing that night. On the video it says, ‘I don’t think you found my prints. I doubt it. I’m pretty careful about that.’ What does that tell you, when somebody goes into a house and is concerned about whether or not they are leaving fingerprints? I walk into this courtroom and leave my fingerprints all over the place. We all do that. We don’t even stop to think about that. That isn’t something that even enters our mind, but yet it was in his mind.”

  Sells wrote to his attorney, “I guess what I’m doing is writing just to keep from putting my foot up Fred’s ass. This gives me something to do. This would not bother me as bad if Fred was telling the truth.”

  The prosecutor reviewed the court’s instructions to the jury inserting arguments to support the State’s charges. “Well, we know that Kaylene Harris was brutally murdered in the early morning hours of December the thirty-first of 1999, because we have an eyewitness. Luckily. Had it not been for that eyewitness, perhaps this case wouldn’t have been solved, because remember, there were no fingerprints, no shoeprints, no physical evidence that Tommy Lynn Sells had gone in the Harris residence. Think about how scary that would have been. By millimeters, this case could have been very, very different, because that’s all that brave little Krystal Surles survived by, millimeters, because the sheath had already been cut to her carotid. You cut that sheath [sic]—What did Dr. Beamer say? She would have bled in minutes, just like Kaylene. Didn’t take Kaylene very long to die. It didn’t, and that’s how long it would have taken Krystal as well. Lucky. Lucky for her, and for everybody else in our community she survived, because if she doesn’t, this is a different ball game.”

  The state’s attorney picked up a photograph of the Harris home. “There is a reason why Tommy Sells went out to the Harris residence, amongst the many. First of all, it is desolate out there. Look at that.” He walked the length of the jury box with the picture facing his audience. “I mean, you have to drive to Guajia Bay. It is a quarter mile to the nearest house. I mean, it was an easy target. He had an opportunity because Terry Harris was gone. That calls for some planning.”

  “Fred is so weak. He is a punk,” Sells scratched across the paper.

  Hernandez then showed a picture of the living Kaylene Harris to the jury. “This is what she looked like. Pretty little girl. Breathing, smiling. Look at the wind in her hair. She must have been having a good time.”

  He held up a post-mortem photograph. “This is what Tommy Lynn Sells did with Kaylene Harris. This is what he reduced her to.”

  Hernandez flashed a series of gruesome photos before the jurors’ eyes as he reiterated the magnitude of Kaylene’s injuries. “Talk about intent, what do we see?” He waved Kaylene’s “Wrap Yourself in Love” shirt in the courtroom. “This is a nightshirt Kaylene Harris was wearing. Look at all the blood. Everywhere, stab wounds, going right to what the defendant intended to do.”

  He picked up her shorts. “How unusual that the shorts don’t seem to have much blood, if any, on them. There might be a stain over here on the front. Those aren’t blood-soaked, certainly not like the tee shirt. There is a few specks here. And then the panties.” He presents them to the jury with a flourish. “Again, these are not blood-soaked either. You ask yourself, ‘Why are the shorts and panties not blood-soaked, but the tee shirt is?’ and I’ll tell you why. Because he went there with a specific intent to commit this aggravated sexual assault, and he cut them off early in the process. That is what happened.

  “[ . . . ] You can ask yourself why. We’re never going to know why he did it, but we are going to know that Kaylene put up a fight. She’s a little girl, five-three and one-fourteen. That’s not realistically much of a fight she can put up, but the bruises on her legs told you that somebody grabbed her legs [ . . . ]. Tommy Lynn Sells tried to open Kaylene Harris’ legs and she wouldn’t. She struggled with him. [ . . . ] Krystal told you she struggled. Even the defendant admits that the victim struggled. And what sort of signs do we see of a struggle? Well, the doctor said, ‘I found what are normally referred to as defensive wounds.’ In other words, wounds where somebody will put up their hands or their arms to keep from getting cut or stabbed. Look at her little hands. Look at the marks on it. She did put up a fight. She did put up her hands. She was trying to keep this man from killing her. Not only her hands, her arms.”

  He concluded with a plea to the jury. “Horrible, horrible crime, and a man with bad intentions. He went to the Harris house to commit an aggravated sexual assault, and he also tells you that in the video: ‘I thought about raping Crystal.’ What does he do? He goes to the bedroom where he commits this horrible, horrible crime, and now I ask that you find the defendant, Tommy Lynn Sells, guilty of the offense of capital murder.”

  AFTER a short recess, Victor Garcia rose to make the argument for the defense. “When Tommy Lynn Sells pled guilty to attempted murder, he accepted responsibility for what he did. Nobody ever asked Tommy Sells in this courtroom if he was guilty of murder, because he is. [ . . . ] He isn’t [ . . . ] guilty of capital murder.

  “[ . . . ] Be honest with yourself. When you saw that they took a rape kit from Katy Harris, you expected to hear something. When you saw they took a rape kit from Tommy Lynn Sells, I know you expected to hear something, and then they paraded those rape kits around. Every witness they asked, we took a rape kit, we took vaginal swabs from her mouth, from her anal [sic], from her vagina, and what did you hear? Nothing. There was [ . . . ] no evidence of sexual assault that came from medical evidence, no sperm, no pubic hairs, nothing.
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br />   “[ . . . ] Give me the opportunity to try to show you why there might be reasonable doubt as to what the State is alleging. I cannot compete with the pictures that they are waving. I cannot compete with the knife that they are waving around. I am not trying to justify what Tommy Sells did. I’m not. As a matter of fact, I hate it, too, more than you can imagine.”

  Garcia pounded on the importance of reasonable doubt. He stressed the permanence of their decision—of their need for factual certainty. “He intentionally killed Katy Harris. He’s guilty of murder, okay? Let’s not waste time with some of the things that are all so obvious to you and to me and have been all along. We’re talking about intent. We’re talking about the aggravated assault.”

  “Bobby’s doing the best he can,” Sells wrote to Gonzales. “I should of never talked. But I did. I wanted to stop. I wanted to do the right thing. Because I did the right thing, they want to kill me for it. But that’s okay. No hard feelings to none of them.”

  Garcia continued with his argument. “Right off the top, the law tells you—The law tells you very clearly: In order for it to be a capital murder, you have to find that an offense of burglary was in fact committed, and burglary is without the effective consent if he enters the habitation with intent to commit theft or another felony like aggravated sexual assault.

  “Opportunity to have a burglary. See, you can’t just go into somebody’s trailer and say that it is burglary. You have to intend to commit something. [ . . . ] Lesser charge of murder; he’s guilty of murder. You know that. I know that. On the attempted capital murder he pled guilty to you. He told you, ‘Yes I did it.’ “

  Using excerpts from the videotaped confession and walk-through, Garcia, point by point, attacks the credibility of the prosecution’s interpretation of the evidence and of Sells’ intent.

  When he played portions of the original confession, Sells wrote, “Bobby put on the first tape. Breaking me up some more. God, I feel so bad today it’s not funny. Head hurts. Cannot breathe right. Chest hurts. Mouth hurts.”

  Then Garcia showed the jury excerpts from the walkthrough tape that supported his contentions. “This tape’s killing me even more,” Sells scribbled to Gonzales. “I don’t understand why Booby [sic] says it will help. This jury is going to kill me. And that’s fine by me; I just can’t go on with this. My heart’s being ripped out every day. And this is like the nail in the coffin.”

  Garcia questioned the believability of the last confession, the written one. “Tommy Sells is willing to say whatever he can to save himself, and he’s telling them, ‘Is there anything else that you want? Is there anything else I can do for you?’ you know, and then this one is done—they started at ten o’clock at night. There is a question about whether it was a prolonged period of time. Ten o’clock at night, and they end up signing it at almost one o’clock in the morning. Why would they choose that particular time span to do something as important as trying to get a statement, and why wasn’t this videotaped? They had the video camera for the other one. They had the video camera to go out to the crime scene. Why not videotape this one?”

  Again, Sells defended his attorney in his notes: “Bobby is doing his best with what I gave him to work with. I know I could have walked on this but I wanted to talk. I wanted to die that’s why I can be at peace with myself. Whatever way it goes is okay with me.”

  “But you see,” Garcia continued, “that’s not enough. It is still not enough. They have to go back and they have got to get State’s Exhibit Number Five. They have to. They need it. [ . . . ] They already told them, ‘We don’t have capital unless we can prove a sexual assault. The tape isn’t any good. State’s Exhibit Four is not any good. Go get it. And you talk about somebody CYA, covering your ass. They put everything into the sentence that they wanted in one sentence, and they use the rest of it to try to explain how they didn’t coerce him, threaten him or promise him or do anything to get it from him.

  “Everything in this statement points to Larry Pope CYA, because they flat-out told Tommy Sells, ‘You admit to this, you will get the death penalty.’ Tommy Sells had already told them, admitted it, even though it is written on here, he said he wanted to die. Everything that he had done, he says on the tape, it is bad to hurt people, and this is what they got, you can choose to believe Four and Five. That’s your prerogative, but the charge gives you the ability to question whether or not these statements were influenced in any form or fashion, and that benefit should be resolved in favor of the process we have. That’s the way that it should be resolved.

  “When you get down to it, this is what Tommy confessed to. This is what, later on, they wanted him to tell them, because the physical evidence does not add up, does not add up to their theory of the case. Brutal crime, horrendous as you want to see. I don’t like him very much. I don’t like him at all, to be honest, and I’m not just saying that, but you have got to consider the evidence for what it is worth.”

  In response to these words, Sells scrawled on his paper: “This hurt me.”

  “Tommy Lynn Sells is guilty of murder, by his own words, but he’s not guilty of capital murder. There is not sufficient evidence to raise it to the point that you can decide without hesitation that his only intent as he entered the trailer was specifically to commit aggravated sexual assault.

  “He goes into the mom’s room and he says, ‘I don’t have a plan.’ Then he says, ‘You know, I was going to rape her; oh, I’m too drunk.’ Well, if he’s too drunk to rape the mother, what makes you think he’s going to be able to rape, you know, another girl? That’s what makes this case so difficult. That’s what makes this case take—at least warrant the amount of time to independently consider. What happens to our system when you can go in there and say, ‘You know what? that’s good enough for me. You know what? Fine. He said he did it. Let’s kill him.’ Don’t do that to yourselves.

  “[ . . . ] Because the State of Texas has the burden of proof [ . . . ] they get to stand up here again, and Fred Hernandez is going to knock me down like you wouldn’t believe. ‘Mr. Garcia says this, Mr. Garcia says that.’ He’s probably going to pound, he’s going to wave pictures, he’s going to wave the knife at you. He has the right to do that. He has the right to plead for law enforcement, say, ‘Let’s not let this happen in our county, let’s not let murders happen in our county. Let’s not let capital murders happen in our county.’ Except this doesn’t fit under the State’s evidence. It doesn’t fit. Tough. Tell him to explain to you how that bra got the mark and the scratches on the breast if the bra was already off. Tell him to explain to you how Katy’s blood was on those shorts and on the underwear, and so was Krystal’s, if he’s saying that they were not anywhere close to the crime scene. Tell him to explain to you how Tommy’s shirt cannot be soaked in blood also if he was holding her from behind and he cut her neck from behind [ . . . ] You have to find one of the hardest things to prove, and that is somebody’s intent, and actions, ladies and gentlemen, speak louder than words.

  “[ . . . ] You have a very difficult job ahead of you. I don’t envy you. Take it serious. Take your time. Consider it, and maybe you might even go one step further, say. You know what? After Mr. Hernandez sits down, think of what I would have said if I had been given an opportunity to get back up here again. I don’t condone, you don’t condone, the system doesn’t condone what Tommy Lynn Sells did. You never will, but this is not a capital murder case. He’s guilty of murder; he’s not guilty of capital murder.”

  FRED Hernandez faced the jury and responded to each point of doubt raised by the defense. Then he said, “Let’s talk about intent, what this case really turns on, intent. Now, what kind of person is going to go wander aimlessly into somebody’s house with a knife? ‘I just happened to have a big old knife. [ . . . ] I’m just going to carry that into some stranger’s house.’ Right. Of course not. He knew exactly what he was doing. [ . . . ] He surveys the entire house, finds out it is just the women and the little blind boy. Boom, he’s got an op
portunity and he takes it. This is an opportunist.

  “His story is, ‘I just spontaneously went,’ or this thing about cocaine. Give me a break. [ . . . ] That’s not the reason he went over there. He went over there to commit aggravated sexual assault, whether it was against Katy Harris or whether it was against Crystal Harris. [ . . . ] Remember what the court told you: Penetration, no matter how slight. And the burden of proof has been met. We didn’t need to have this massive trauma to show that. That’s extra. All I have to show you is that he intended to do that when he went over there, and the evidence is clear on that.”

  “[ . . . ] Next week, September twenty-seventh, Katy would have been fourteen years old.” He held the picture of the lively young teen before the jury. “Look at that smile. She didn’t get to be fourteen or fifteen or eighteen. There will be no high school graduation, no prom, no college, no marriage, no kids, and all because the defendant, Tommy Lynn Sells, went over there and he took her life in the most brutal, horrible fashion we can imagine.”

  Sells wrote to Gonzales, “I can’t put the pen down. If I do I would jump on Fred. The truth is not in him. Blowing smoke. Smoke only.”

  Fred Hernandez continued, “He says in his confession, ‘I’m not telling you this to get a guilty conscience off my mind.’ He didn’t care. There wasn’t a shred of guilt in him. He’s just talking like it’s an everyday, ordinary occurrence. [ . . . ] He knew exactly what he was doing before he got there, when he got there and after he left.

  “Cases like this are always very hard, but I want you to think back to something Crystal Harris said. She said, ‘I didn’t know what had happened in my home. I saw the ambulance at the Betzes’, and I saw the ambulance at my house, and I saw them take somebody out of the Betzes’ residence, and the ambulance left. And then she said, ‘I then saw the ambulance at my house leave with no body,’ and she said, ‘I knew somebody hadn’t made it,’ and she was worried because she had been in charge of two other children that didn’t belong to her. She was worried about them, and she’s trying to figure out who is left over that has not been accounted for, so she starts asking questions, and by asking the age of the child that was taken in the ambulance, she said at that point in time, ‘I knew my Katy hadn’t made it,’ and she said, ‘I sat there and I cried and I cried.’ Can you imagine the pain of the mother, knowing that she was never going to see her daughter again that horrible morning? That is what this case is about, and I ask you to find the defendant, Tommy Lynn Sells, guilty of capital murder.”