Through the Window (23 page)

ON re-direct, Pope told Hernandez, “I called him into my room, told him there was [ . . . ] one of the statements he had made that I really didn’t understand what he was telling me [ . . . ] I asked him if he could tell me what that meant.”

Hernandez led Pope to clarification of the death wish expressed by Sells. Pope said, “When we first arrested him, when we first brought him in, he said he didn’t want to spend the rest of his life in prison. He was upset. He said he had just as soon die. He would rather die than spend the rest of his life in prison. He said that to me at least twice, I would say, that morning.”

“Have you heard that before from other defendants?” Hernandez asked.

“Yes, I have heard that from people arrested for a lot smaller things than this.”

ON re-cross, Defense Attorney Garcia scored a point by leaving a question hanging in the air: “If this man is a danger to society, then why was he allowed to make a crime-scene walk-through without handcuffs, leg irons or not being held by the arm?”

CHAPTER THIRTY-THREE

ON the final day of testimony, Deputy Larry Stamps took the stand. He testified about retrieving Sells’ clothing from the laundry basket in his home, his trip to Val Verde Medical Center to photograph Krystal Surles before she was airlifted to San Antonio and other areas of his involvement in the case. According to Lieutenant Pope, Stamps had glorified his own role in the investigation from the beginning. Pope said Stamps had never been the pivotal figure he wanted everyone to think he was. Sells did not care much for him either. He wrote, “Bobby said I need to keep my cool. Stamps is lying his ass off.”

Defense Attorney Victor Garcia had no questions for this witness on cross-examination.

Stamps was followed by Dr. Cynthia Beamer, the physician who treated Krystal Surles on the ninth floor of the Janie Brisco Unit at the University of Texas Health Science Center, University Hospital, in San Antonio. She explained how Krystal’s injuries had brought her close to death that night from three different causes related to the incision of her neck.

The fact that she was even testifying elicited this angry written retort from Sells: “Bull shit! I’ve done pled guilty.”

Dr. Beamer said, “When I received her into my care, she had a tracheotomy, which is basically a tube that bypasses the voice box and goes into the trachea and allowed her to breathe off a ventilator.”

“Explain to us what type of wound it was,” asked the State.

“The wound that she sustained is normally a lethal
wound. [ . . . ] Your voice box or larynx sits on top of your windpipe or trachea. If you feel for your Adam’s apple [ . . . ], the injury was just above the Adam’s apple, angling down, coming and getting the arytenoid, which is the cartilage that holds on to your vocal cords, so it angled back and down, and it got into the sheath that surrounds both the carotid artery and the internal jugular.”

After further description of her injuries, Hernandez asked the doctor, “Now, you mentioned that the wound, I believe, severed the sheath around the carotid artery?”

“That is correct, sir.”

“What would have happened if the carotid artery had been severed?”

“The carotid is the major artery to your head. Had that been severed, she would have died within a matter of minutes.”

Then, Hernandez questioned her about the second potentially fatal wound. “Was the trachea severed as well?”

“It did mention in the operative report that the trachea was indeed severed.”

“And with the trachea severed, is a person able to breathe through their mouth and through their nose normally like everyone else would?”

“No,” Dr. Beamer responded, “and she had so much swelling, too, that she was probably just breathing through her neck at that time almost as if it were a man-made trach-eostomy.”

“So she would have been breathing through that hole?”

“Through the hole.”

“Through the gaping hole?” Hernandez asked in a tone that indicated he could not believe it was possible. “Was there any significance to the swelling? What would that do?”

“Well, it is actually very remarkable that they were able to intubate her in Del Rio prior to sending her to San Antonio. There was so much swelling and distortion of the anatomy [ . . . ] it is amazing they got an airway. The swelling
would have caused her to suffocate slowly. She would not be able to breathe.”

Finally, the testimony focused on the third complication that could have, in and of itself, caused Krystal’s death. “Now, we have seen that the wound is pretty big. Was there any possibility of blood seeping into the lungs or anything like that?” Hernandez asked.

“Yes, sir. It was a five-inch cut across her neck, and there are many vessels in that area besides just the carotid and the internal jugular. The blood itself could drain into her lungs and basically she could have drowned in her own blood.”

When Dr. Beamer stepped down, Sells wrote to Gonzales, “Bobby had no questions after state passed her. This doctor really made me look bad. I just cannot understand why Bobby won’t put up a fight on the last two.”

Dr. Beamer was followed by a series of experts who testified about the handling, the analysis and the results of their investigation into DNA, blood and fiber evidence.

Sells was confused about the technical explanations about the DNA. He complained to his attorney about what he did not understand. He added, “Going way over my head.”

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.