Through the Window (19 page)

On the other side of the courtroom was court-appointed defense attorney Victor Roberto Garcia, Bobby to his friends. Thinning gray hair framed a round face with warm, dark eyes, giving him the look of everyone’s favorite uncle.

Sells entered the courtroom. Gone were the long hair, full beard and tattered jeans he had worn when he was arrested. In his blue suit, white shirt and wire-rimmed glasses, he was well-groomed and looked more like a studious bookworm than a cold-blooded killer. The only indication that he was not what he seemed was a blue tattoo of a rose blooming on his neck just above the edge of his shirt collar.

The three attorneys examined one hundred and twenty members of the jury pool. In legal terms, this body is referred to as the venire—each individual in the group as a
venire member. Many were eliminated because they were unshakably convinced of Sells’ guilt, or because they thought a life sentence was too lenient and they would always give a death sentence to anyone convicted of murder. Others were sent home because of their opposition to the death penalty. Some did not gain a seat because they believed that if you kill once, you will kill again. One juror was excused because he was not a citizen of the United States and another because he was the brother-in-law of the defense attorney.

According to defense team notes, venire member number one did not feel that the death penalty was used enough or properly. His father, who had been a drug runner, had been murdered in 1977. A bodyguard killed him for drugs and money, but only received a nine-month sentence. The defense challenged him and was sustained by the judge.

Of potential juror number six, the defense noted, “This girl is stoned.” Before the seventeenth candidate was questioned, the judge embarked on a nine-minute discourse about special issues and other elements of the law. The monologue was not recorded by the court reporter. Throughout it all, the woman in the box was attentive, but would not look at the defendant. The defense challenged her for an inability to follow the law. She was dismissed.

While the thirteenth prospect was being questioned, mitigation specialist Vince Gonzales noted: “Tommy has passed a note saying he is starting to get pissed. A lawyer from Uvalde is sitting in the gallery staring at Tommy. About this time, 9:57 A.M., Donna and Jessica came in. Tommy calms down some.” Donna Hughes was an employee of the aviation firm that had come to the rescue of the downed Texas Rangers and Tommy Lynn Sells in Oklahoma. She had kept in touch with Sells since then— even buying his suits for the trial.

Defense notes said that venire member twenty-four was an “IDIOT” who “misunderstands the difference between probability and possibility with possibility being more
likely than not.” He was not the only potential juror with confusion on this issue.

Number thirty-seven claimed she was unemployed, yet she listed a work number on her questionnaire. She stated that she had learned a lot from
Unsolved Mysteries
, but swore she did not have a TV and did not believe in cable.

Sells passed another note to Gonzales. “See I messed up my family, Mom, Tim, Jim, Randy. I believe beyond fixing. God blessed me with another family and I messed that up as well. That’s what got me into this mess.”

A mutual challenge was made to dismiss venire member forty. He was an emergency room nurse who had treated Krystal Surles during her brief stopover at Val Verde Medical Center. He was also the one who had drawn blood from Sells for testing after his arrest.

Potential juror number forty-two seemed to have followed the case with an abnormal intensity. He also admitted to multiple viewings of
The Faces of Death
, a controversial video filled with images of actual deaths of real people.

The State challenged venire member forty-six because he did not think Tommy Lynn Sells was capable of committing this crime. The State’s challenge was denied, but he was excused after a peremptory strike.

The defense wrote, “This woman is a Neo-Nazi” about potential juror number seventy-seven. They challenged her because she believed the defense had to present evidence of innocence. The challenge was upheld.

Of number seventy-nine, they wrote, “Mormon— Blood Atonement!” They challenged him for being combative and evasive, but the judge denied them. They needed to use one of their peremptory strikes, a defense team’s one tool for unilaterally disqualifying potential jurors.

Sells commented to Garcia on his notepad. “You will be a hated man before this is over with.”

“I was hated the day I took your case but that is okay. I don’t care. If they get in trouble, they will want somebody like me who is not a nice guy,” he responded.

“You are a nice guy. I have never not liked you.”

“Thanks but I mean they want somebody that can fight in court and not lie down.”

“It’s me I don’t like.”

“I can’t help that,” Garcia wrote.

While potential juror number 105 was on the stand, Sells scratched a note to Gonzales, “Low Blow. Judge called Bobby a balloon-headed man.”

In a capital case, selection of a jury is a high-stakes game. Inevitably, contention arose. Garcia requested the opportunity to question all the potential jurors about their attitudes on parole. He asserted that the jurors had a right to know that if they gave Sells a life sentence, he would have to serve a minimum of forty years’ imprisonment before he would be eligible for parole. Judge George Thurmond denied his request. Garcia raised this objection repeatedly throughout the process.

Sells sent a note covering the front of three green Post-it notes to Jessica:

I’m afraid. I’m not afraid of this court. I’m afraid I won’t have you no more. I know you keep telling me I don’t have nothing to worry over. I’m just afraid.

I feel like going crazy. Do you want to come with me? I will try to call again tonight, 7 to 9. I’m sorry I could not call last night till so late. But I did try. Will you try and call the sheriff and see if we can have lunch at the same time at the jail? Love you.

Bobby keeps trying to tell me I don’t need to be looking at you or talking with you. Because other people don’t like it. I keep telling him, Oh well, I love you so I can’t keep from it.

Jessica’s response covered the backs of the sheets Sells sent. She added one additional page that she covered front and back.

Tommy, XOXOXOXO Please believe me you don’t have anything to worry about. I love you. I will always be there no matter what happens. Just promise me you will stay with me no matter what. Nothing’s wrong, baby. I promise. I’m just trying to be patient waiting for the Lord to do something or show me what he’s gonna do.

I’m just here holding on just like you and honestly pray I never lose you. I love you! You know even your mom knows that. That’s why she doesn’t wonder about me. I just wonder why you don’t want me to do anything with your brother. You know if he was going to stay with me also. Did you think he was going to hurt me? I know it’s not jealousy. Ha! Ha! He doesn’t even like me. Ha! Ha! But anyway, you have nothing to worry about. I love you. Your wife, Jessie.

For fourteen tiresome days, the prosecution and the defense repeated the same questions to one member of the jury pool after another. Finally, the chosen twelve, plus two alternates, were impaneled.

Seated on the jury were: Miriam Gonzales; Hilda Loper, who worked for a justice of the peace office and a local law firm; James Jones, retired military—both Navy and Air Force; William Cooper, a Taoist with two years in law school; Jay Hayden; Aida Victoria Gomez, whose husband was a state trooper; Eleanor A. Stark, at 71, the oldest member of the jury, and a retired U.S. Customs worker; Anna Riegel; Mark Rivas; Dwight Brown; William Grady King; and Pedro Vidales, who had said at one point during questioning, “If you kill once, you’ll kill again,” and claimed not to have understood the judge’s question regarding independent assessment of the evidence. The defense had used up all its peremptory strikes by the time Vidales was seated. They pleaded with the judge for additional peremptories, but were denied.

After they were sworn in, Sells stuck a pink Post-it
note in front of Garcia. “Do you want me to retract everything I said?”

Then he wrote an explanation of himself to Jessica.

There was a boy who grew up lost to this world. Never knew where to go. Never knew where to turn.

The boy grew up to be a man. Well, somewhat of one. But he never knew where to go and still’s lost to this world.

He fell in love. Oh how good his heart felt. How special she was to him. Always had a warm touch to offer him. But he was lost to this world.

She gave and gave. He took and took. He tried his best to give back. But you see he was lost to this world.

He grew up lean and mean.

The trial was scheduled to start in a few days on September 12. It was expected to last two weeks.

CHAPTER THIRTY

THE small town of Del Rio transformed into a media Mecca overnight. Traveling 160 miles west of San Antonio, many of the out-of-town journalists felt they’d come to the end of the earth.

The reporters, cameras and mobile studios surrounded the historic building downtown. Built in 1887, it is the only courthouse Val Verde County has ever known.

On the first day of the trial, the star of the show was not the man whose life or death would be decided on the second floor of the courthouse. It was the young survivor, Krystal Surles. Cameras zoomed in to catch a glimpse of the puckered scar slashed across her neck. She smiled and waved to the cameras as she entered the building.

When the judge entered the courtroom, Sells wrote a note to his attorney. “9-12-2000!! Started the trial!! 9:02 A.M. You said to look at the twelve when we stand up. I feel pretty helpless here. You need to do something.”

“Look at the person reading the indictment,” Garcia responded. “When you answer, look at the jury.”

Assistant D.A. Fred Hernandez stood to read the charges. When Tommy Lynn Sells stood to respond, the gallery greeted him with short gasps and drawn out hisses.

Count one accused, “[ . . . ] in the course of committing burglary of a habitation with intent to commit aggravated assault, did then and here intentionally commit murder by causing the death of an individual, Kaylene Harris by cutting the throat of Kaylene Harris with a knife.”

“How does the defendant plead to that accusation, guilty or not guilty?” the judge intoned.

“Not guilty,” Sells responded.

Count two charged that he committed an aggravated sexual assault and caused the death of Kaylene Harris. Once again, he said, “Not guilty.”

Count three claimed Tommy Lynn Sells “[ . . . ] did then and there attempt to cause the death of an individual, Krystal Surles, by cutting the throat of said Krystal Surles with a knife, which act was more than the mere preparation but failed to accomplish the murder of Krystal Surles against the peace and dignity of the State.”

“And to this accusation, the defendant pleads?”

“Guilty,” Sells said to the surprise of the court and the spectators alike.

“The defendant may have his seat. We’re ready to proceed, then, with the opening statement. Does the State desire to be heard?”

“Yes, Your Honor. Good morning, ladies and gentlemen. As most of you remember, my name is Freddy Hernandez, and I’m the assistant district attorney. I think most of you saw me during the individual
voir dire
process. And seated at the table is Mr. Tom Lee, the district attorney, and we’re here today for one reason, to see that justice is done.”

After explaining the purpose of his opening statement to the jury, he summarized the State’s case. “You are going to hear evidence about this horrible case. You are going to hear how the defendant, Tommy Lynn Sells, knew the victim and her family. They are going to tell you how, before December thirty-first of 1999, they knew Tommy Lynn Sells, where they knew him from, how they befriended him. In fact, they had even bought an automobile from him at his work place. That is what they are going to testify about.

“They are going to get on the stand and they are going to tell you that Tommy Sells, the defendant, had been in their home on various occasions and spoken to both of the Harrises, and also knew the kids, including Kaylene. [ . . . ] The Harrises are going to tell you where their home is located [ . . . ] outside the city limits of Del Rio just past
Amistad Lake as you cross the bridge going to Sanderson. It is a fairly isolated area. It is dark and the houses are far apart. They are going to tell you if you want to get to their house, you actually have to make an effort to get to their house. You are not just going to be driving by the house randomly.

“[ . . . ] Terry Harris is going to tell you on the evening of December thirtieth of 1999, he saw the defendant, Tommy Sells. He saw him at what used to be the Quickie Mart next to Ram Country, and on that day Terry Harris and some friends were going to Kansas. They had their luggage in his truck, and the defendant said, ‘Hey, are you going somewhere? Where are you going?’ and Terry Harris told him, ‘I’m taking a trip up north,’ so that defendant at that point in time knew the man of the house was going to be gone.

“[ . . . ] Most importantly, you are going to hear from the brave little girl who is going to tell you how she survived the brutal attack inflicted by the defendant. She’s going to walk you step by step through each and every detail of what she saw and what she heard on the early morning hours of December thirty-first, 1999.”

Hernandez ran through a list of other witnesses and their anticipated testimony: Texas Ranger John Allen; Val Verde County Sheriff’s Department Investigator Larry Pope; Dr. Jan Garavaglia, Bexar County pathologist; and Dr. Cynthia Beamer, a physician in San Antonio who had treated Krystal Surles.

“There will be one DNA expert that will be called, a serologist that will tell you the defendant’s blood, along with Katy’s blood, was found on his clothes. Another expert who compares fibers will tell you that his fibers were all over the victim’s clothes and the victim’s fibers were all over his clothes as well, showing contact.