Through the Window (24 page)

“[ . . . ] 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.

“[ . . . ] 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 opportunity 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.”

AFTER two short hours of deliberation, the jury returned. They found Tommy Lynn Sells guilty on all three charges, one count of attempted murder and two counts of capital murder.

CHAPTER THIRTY-FOUR

THE next day, the punishment phase of the trial began. In it, the jury had to answer two special issue questions. First: “Is there a probability that the defendant, Tommy Lynn Sells, would commit criminal acts of violence that would constitute a continuing threat to society?” Then they must answer the second question: “Taking into consideration all of the evidence, including the circumstances of the offense, the defendant’s character and background, and the personal moral culpability of the defendant, do you find there is sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than the death sentence should be imposed?”

To bolster its claim that the death penalty was called for in this case, the prosecution called a series of witnesses. Danny Calderon, a prisoner in the Val Verde County Jail, testified that Sells had threatened him with a slow death.

Dr. Fredrick Miers stated that, in his opinion, Tommy Lynn Sells was an anti-social personality. Individuals with anti-social personality disorder demonstrate a lack of concern for others, an absence of shamefulness and guilt and a disregard for society’s expectations and laws. They are irritable and aggressive, good at manipulating others and highly impulsive. They posses a pervasive disregard for other people, and cannot or will not conform to the norms of society. Their lives are characterized by frequent imprisonment for unlawful behavior, alcoholism and drug abuse. Homicide or suicide is common. There is no known effective treatment for people with anti-social personality disorder.

Dr. Miers believed there was a strong probability that Sells would commit criminal acts of violence and would constitute a continuing threat to society. To strengthen the doctor’s opinion, Hernandez went back over his testimony and asked him targeted questions. He inquired about an incident that had occurred on June 9, 2000, at the Terrel Unit of the Texas prison system. A death row in mate assaulted a 78-year-old prison chaplain. He grabbed the chaplain’s arm into his cell, tied it with a sheet and cut on him with razor blades at the end of a shank.

“You are familiar with the chaplain that was recently attacked and stabbed in the penitentiary [ . . . ]”

“Yes.”

“In fact, that attack took place by a defendant that was on death row, is that correct?”

“[ . . . ] On that attack, that was my understanding,” the doctor agreed.

“And he almost severed his hand with that razor?”

“It was a very serious injury.”

“The point I’m making is that if Tommy Lynn Sells wants a weapon, he can get it in prison.”

“Yes, he can.”

“And of course, you testified that both drugs and alcohol are available in the penitentiary as well.”