Through the Window (26 page)

In conclusion, the assistant D.A. insisted, “There is no doubt that Tommy Lynn Sells will continue to be a threat to society in general, whether it be to us or in the penitentiary. The only thing that is left for you to decide is whether or not there is a sufficient mitigating circumstance to warrant you giving him a life sentence as opposed to a death sentence. You know what? He gave Katy a death sentence. Next Wednesday would have been Katy’s birthday. She would have been fourteen. No more. No high school graduation. No first day of college. No wedding day jitters. No first children. No grandchildren. It is your job and duty to send a message to Tommy Lynn Sells, and to tell him that what he did was beyond horrendous, beyond brutal, beyond sadistic. Tell him that whatever pleasure he derived from killing Katy Harris, for that, in and of itself, he must forfeit his life.

“Answer special issue number one with a yes, that he will be a future danger, and answer number two no, that there is no mitigating factor that will warrant him receiving a life sentence. Don’t do it only for Katy Harris. Do it for all of the people and children of our community. Send a message to Tommy Lynn Sells that we will not tolerate, absolutely not tolerate this type of behavior in our community.”

THIS moment weighed very heavily on Victor Roberto Garcia. It was his last opportunity to save the life of his client. He rose slowly and faced the jury. First, he reminded them of the promise they had made to “[ . . . ] not be swayed by sentiment, conjecture, sympathy, passion, prejudice, public opinion or feeling.

“[ . . . ] Mr. Hernandez just spent twenty minutes of the forty minutes that he took talking to you about emotion, talking to you about photographs, because that’s what he wants you to do, to ignore the evidence that is before you, look at Katy’s picture, look at Krystal and say, ‘You are going to die; we’re going to kill you, Tommy Lynn Sells, and that’s all there is to it.’ That’s not what the law says.”

Garcia went on to address the issue of mitigating circumstances. “It doesn’t justify what Tommy Lynn Sells did, but for the last twenty years he has been a victim of our own society, somebody’s own choosing. He chose to take drugs on his own. I’m not setting that aside, but as very young man, he was victimized by child abuse. [ . . . ] By the age of thirteen years old, he was already in a state hospital where they diagnosed him. They have known the problem exists. Dr. Dickerson told you, and Dr. Miers did not contradict it. Tommy Lynn Sells has a lot of problems.”

The defense attorney moved on, comparing the two psychiatrists. “When you consider Dr. Dickerson and you consider Dr. Miers’ testimony, you have to weigh them. Dr. Miers looked at these photographs, read the reports, saw the video confession and said, ‘This man needs to be killed. That’s the only way we can control him. There is no other way.’

“[ . . . ] That’s not what Dr. Dickerson did. Call it antisocial, call it borderline, it doesn’t make any difference. Tommy Lynn Sells has a lot of problems. Do you have to kill Tommy Lynn Sells to control him?

“You know, I was kind of irate at Smithey, who testified because he seemed to be wanting you to believe that
every inmate in the prison system can get a knife, that every inmate in the prison system has whatever drugs they want, and that every inmate commits some sort of act of violence. If that’s true, shut the court down, send the word to the prison system and say, ‘Kill one hundred and fifty thousand inmates, because there is a likelihood, since they are in prison, that they are going to get a knife, that they are going to get drugs, and that they are going to hurt somebody. Let’s just kill one hundred and fifty thousand people and get rid of the problem.’

“You say, ‘Well, let’s just kill Tommy Sells. That will take care of his problem.’ See, but that’s where Dr. Dick-erson comes in and tells you when a person [ . . . ] serves a life in prison, they can treat what they know he has. He has some brain dysfunction that can be treated. He has some disorders that can be treated.”

Garcia argued for the life of his client. “When he came in to you and pled guilty to Krystal Surles, that has to mean something to you. He came here on his confession and said, ‘I killed Katy Harris.’ That has to mean something. We’re talking about justice. [ . . . ] Justice requires that you follow the law that the State of Texas has given you. If you decide that Tommy Lynn Sells should live, and it is in your hands, every day that Tommy Lynn Sells sees the sun go up, he’s going to be incarcerated. Every day for the rest of his life that he sees the sun go down, he’s going to be incarcerated. Mr. Hernandez is going to go back and tell you Katy doesn’t have that opportunity, and that’s true; she doesn’t. But make him think about it for every day for the rest of his life, think about what he did to Katy Harris every single day. When you think about it, if Tommy Lynn Sells lives to be seventy years old, seventy years old, he’s going to be sitting in his cell and he’s going to look at a calendar and say, ‘You know what? I still have five more years before I can even be considered, before they will even look.’ At seventy years old, he’s still going to be sitting in his cell every day.

“[ . . . ] You cannot decide this case on emotion. You
cannot decide this case just on sympathy, passion, prejudice or public opinion. You should not decide this case because Terry and Crystal Harris are crying, because they are hollering, and they are going to for a long time. Nothing justifies what Tommy Lynn Sells did. But has it been proven to you that he’s going to commit criminal acts of violence in the future? Can you tell me, is there anything that mitigates this case? That’s something that only you can decide. Only you can decide, and I’ll submit to you that the last nine months are an indication. The fact that, thank God, that Krystal Surles is still here, thank God for that. I can only tell you, don’t decide this case on vengeance. ‘Vengeance is mine,’ says the Lord.”

IN his rebuttal, Hernandez begged for death as intently as any one victim of Tommy Lynn Sells ever pleaded for life. “Nobody has enjoyed going through this case. It was horrible. Very difficult, very emotional for everybody in it, starting with the family, on down to the lawyers. It takes a lot out of everybody, including you. I’m sure that nobody in this courtroom wants to be here.

“The last person that wants to be here is Tommy Lynn Sells, and that’s why he took the screens from the house, and said, ‘I didn’t leave any prints. I doubt if you will find any.’ He didn’t expect to be here. He didn’t expect to be here because he thought he had also killed Krystal Surles. When he walked out, he said in this confession, ‘I thought she was dead.’ I mean, as far as he was concerned, when he walked out of that bedroom in the Harris residence, in his own words, ‘I already dropped one; I went back to get the other one.’ He just assumed he killed everybody.

“[ . . . ] This case has really been about actions speaking louder than words, because all you have to do is look at what the defendant has done in the past, track him, look at his convictions and what he’s done, how he’s escalated, look at where he left Katy, look how he did it.

“[ . . . ] So what do we do with Tommy Lynn Sells? [ . . . ] ‘How do we insure or guarantee that he won’t commit
any further criminal acts of violence?’ Mr. Garcia asked Royce Smithey. [ . . . ] He said the way to do it is to execute him. I guarantee you he won’t commit any further acts of violence. That’s the only way. That’s the only way that he could guarantee that.

“What could justify what this defendant did to Katy? You have a beautiful little girl. What in the world can justify what he did to her? Can you think of something? Can you think of a mitigating circumstance that will justify this? Because if you do, then you tell everybody else what that circumstance was, because I don’t see it. This case is tough, and we told you about it, and everybody said that they could follow the law and I’m going to ask you to do that. Do the right thing and sentence Tommy Lynn Sells to death.”

NOW, all that remained was the decision of the jury. No one had to wait long. After three hours, the jury had finished their deliberations. As they entered the courtroom, Pam and Krystal Surles and Marlene and Herb Betz took seats in the front row. They held hands, held their breaths, held out hope for the death penalty. The jurors presented their answers to the two special issue questions. “Yes,” they said, Tommy Lynn Sells is a future danger to society. “No,” they answered, there are no mitigating circumstances in this case.

For the paltry handful of people in the courtroom who cared about Tommy Lynn Sells, or objected to the death penalty on principle, it was a devastating blow. Their sad, defeated faces and mouths devoid of words were in sharp contrast to the majority of the courtroom. For the families and the prosecutors—and for much of the community—it was a cause for celebration. A moment for lengthy jubilant interviews—a time to declare that justice had been done.

“We had a lot of volunteers at the courtroom who said they’d be glad to put the needle in his arm—a lot of people,” said Herb Betz.

His wife, Marlene, added, “Most of them just wanted to take him down to the town square.

“Let them stone him to death.

“Let the people take care of him,” Marlene concluded.

CHAPTER THIRTY-FIVE

ON November 8, 2000, Tommy Lynn Sells took up residence on death row in the Polunsky Unit in Livingston, Texas. He was given Texas Department of Justice number 999367. He found the restrictions and housing here far more confining than his time in the Val Verde Corrections Center. There was no television to watch. No telephone calls allowed. And smoking was prohibited.

He was housed in a section of a pod containing fourteen prisoners in all, and had to spend twenty-three hours of every day in his cell. It was a six-foot-wide space and contained a sink, a toilet and a bed. Sometimes he slept on the floor, using his bed as a makeshift desk for writing and drawing.

Sells became part of a small death row protest. “Last night on C-pod, we refused to eat supper. Every time Texas kills someone we are going to refuse to eat that last meal of the day and between 6 and 7, there will be silence, no talking. Of 84 cells on C pod, only seven people got a tray. It’s respect for the fallen.”

He was allowed a shower every three days. Before he could leave his cell, he had to put his hands behind his back and stick them through the bean hole, where a guard slapped on cuffs. The shower was a room seven feet by two feet. After stepping inside, he stuck his hands into the bean hole again and the guard released the cuffs. On a good day, the guard returned to take him back to his cell in ten or fifteen minutes. On a bad day, Sells had to wait in there as much as an hour.

He quickly adapted to the community of men living on
borrowed time. “I cannot stress this enough. In here is home. No matter what I could say, think or do, I could not, cannot make it in your world. When I first started doing time years ago, my outlook was, ‘I’m just not getting a foothold on things.’ But the older I get, the more I understand that your society changes the rules by not looking out for me as a child, then I see they change the rules again when I get older. Society’s rule is day-to-day, person-to-person. Well, prison society, you may become friends with a guard or two over time, and get a few extra things [ . . . ] but on the whole, my world stays the same. I’m not fighting for my life, get that straight, but I do want the record straight. My life was over a long time ago. I’m living on borrowed time. I was born in 1964 and died in 1964.”

There were lockdowns in the facility two or three times a year or more. Guards went cell to cell shaking the place down in search of contraband. Even Scotch tape was contraband here—a roll was sold on the black market for twenty postage stamps. During this time, whether it lasted two days or two weeks, Sells and the other prisoners stayed in their quarters round the clock, subsisting on “johnnies,” rolled pancakes filled with peanut butter.

Two activities occupied Sells’ time: creating artwork from the limited selection of supplies available at the commissary, and maintaining an extensive written correspondence. He heard from a few family members, a couple of prisoners he met in Del Rio, his attorneys, members of the law enforcement community and pen pals he earned with his infamy. These correspondents wrote from every corner of the United States. He even received letters from Europe. It was obvious that some who wrote were disturbed individuals who saw him as an object of admiration or sexual attraction. Others were collectors of serial killer memorabilia. Some were drawn by the same hypnotic fascination that compels passing drivers to stare at the gruesome horror of a fatal car wreck. The Europeans in the group tended to be opposed to the death penalty, and viewed him as the victim of barbaric American justice. He said the only thing
that made him feel alive was the mail he received from the outside.

TOMMY Lynn Sells was physically removed from his wife, Jessica. But even in his absence, he created problems for her. Her boys were teased and isolated at school by their peers and teachers alike. She suffered as a powerless witness to their persecution.