Thursday, April 3, 2014
AUSTIN – Pursuant to a court order by the 63rd District Court of Val Verde County, Tommy Lynn Sells is scheduled for execution after 6 p.m. on Thursday, April 3, 2014.
On Sept. 18, 2000, a Val Verde County jury convicted Sells of the capital murder of thirteen-year-old Kaylene Harris. Following a separate punishment phase proceedings, on Sept. 20, 2000, the convicting court sentenced Sells to death.
FACTS OF THE CRIME
The U.S. Court of Appeals for the Fifth Circuit noted that Sells’s case has garnered a substantial amount of media attention due largely to Sells’s claim to have committed as many as 70 murders in his lifetime. However, the Court found “the facts underlying Sells’s capital murder conviction are not in dispute” and summarized Sells’s murder of Kaylene Harris as follows:
Early in the morning on Dec. 31, 1999, Sells secretly entered the Del Rio, Texas trailer home of Terry Harris, an acquaintance of Sells. Sells was familiar with Harris’s home, having previously visited Harris there. Armed with a butcher knife, Sells explored the residence. Although Harris was out of town, the residence was occupied by five people on that morning: In one bedroom was Harris's wife, asleep with a young girl; in another bedroom was a young boy; and in one of the bedrooms was a bunk bed occupied by Harris’s thirteen-year-old daughter, Kaylene Harris, and her family friend, eleven-year-old Krystal Surles. Seeing the girls asleep, Sells lay down next to Kaylene on the bottom bunk and cut off her underwear. When he began to grope Kaylene and touch her genitals, she snapped awake and yelled for Krystal to go get help.
Sells jumped up at the same time as Kaylene and situated himself between Kaylene and the bedroom door. When she attempted to open the door, Sells stabbed Kaylene with the knife he was still wielding. Sells then turned on the bedroom light and lunged at Kaylene again with the knife, stabbing her a total of sixteen times and slitting her throat multiple times; Kaylene died almost immediately. Sells then remembered Krystal still in the top bunk and hurriedly slit her throat before leaving the room. As he exited the trailer, he wiped his fingerprints off a doorknob and took with him two window screens he thought might contain his fingerprints. Sells then drove back to his house, stopping to discard the knife and window screens in a field.
Meanwhile, a wounded Krystal pretended to be dead until Sells left the home. Believing everyone in the Harris trailer to be dead, Krystal walked to a neighbor’s house where she awoke the neighbors and indicated in writing that help was needed at the Harris residence. After receiving care for her injuries, Krystal was able to supply the police with a description of her assailant, from which a composite drawing was made. The attacker was promptly identified as Tommy Lynn Sells, who was located and arrested two days later.
Upon being arrested, Sells immediately confessed to the murder. In a videotaped statement of his confession, Sells indicated that he was glad to have been caught so that he would not hurt others, and briefly alluded to another young girl that he may have murdered in Kentucky. That same day, Sells voluntarily accompanied police to the Harris residence. There he led them through a videotaped narrative re-enactment of his crime, describing in detail how he murdered Kaylene Harris and attempted to murder Krystal Surles. Multiple forms of evidence corroborated Sells’s confession and Krystal’s uncontradicted testimony, including: the location of the murder weapon; the medical examiner’s testimony regarding Kaylene’s injuries; forensic tests confirming the presence of Sells’s blood and clothing fibers on Kaylene; and forensic tests confirming the presence of Kaylene’s blood and clothing fibers on Sells.
Sells was subsequently indicted for the murder of Kaylene Harris and the attempted murder of Krystal Surles. At his ensuing jury trial, Sells pled guilty to the attempted murder charge and presented no evidence regarding his guilt in Kaylene’s murder. After deliberating less than two hours, the jury found Sells guilty of murder on Sept. 18, 2000.
PRIOR CRIMINAL HISTORY
Under Texas law, the rules of evidence prevent certain prior criminal acts from being presented to a jury during the guilt-innocence phase of the trial. However, once a defendant is found guilty, jurors are presented information about the defendant’s prior criminal conduct during the second phase of the trial – which is when they determine the defendant’s punishment.
During the punishment phase of Sells’s capital murder trial, the State’s case focused on Sells’s incapacity for rehabilitation and continuing proclivity for violence. While Sells’s guilt was established at the first stage of trial, in assessing an appropriate punishment, the jury could consider the particularly brutal nature of his crimes against a pair of vulnerable children. Not only did Sells sexually assault and kill Kaylene Harris, but he slit the throat of her young companion, Krystal Surles, and left her for dead.
In addition to Sells’s conviction for the attempted capital murder of Krystal Surles (which was part of a joined criminal trial of action), the State presented evidence establishing that Sells had previously been convicted of automobile theft in Wyoming in 1980 and malicious wounding in West Virginia in 1983.
In one of Sells’s videotaped confessions to the capital crime, he alluded to an earlier murder he committed of a young girl in Kentucky. The State also presented evidence established that when Sells was in jail awaiting trial for capital murder, he became angry at a fellow inmate, threatening to maim and kill him, and that jail officials had to relocate the inmate to a different part of the facility away from Sells.
Psychologist Dr. Frederick Gary Mears presented expert testimony for the State that, based primarily on his review of Sells’s records and the details of Kaylene Harris’s murder, (1) Sells was “off the scale” in terms of the likelihood of future violence, (2) Kaylene’s autopsy revealed a number of postmortem wounds consistent with intentional body desecration and mutilation, (3) the nature of many of Kaylene’s non-fatal wounds suggested Sells derived pleasure from the brutality of the murder, (4) Sells qualified as a highly manipulative and antisocial personality, (5) consistent with Sells’s antisocial personality, Sells displayed a cavalier attitude during his videotaped confessions and narrative re-enactment of the capital crime that was indicative of a lack of emotion and absolute indifference to death, (6) Sells displayed no remorse for the murder of Kaylene and attempted murder of Krystal, (7) that past behavior is the best predictor for future conduct, and (8) Sells’s criminal history demonstrated an escalation in violence over time.
On Feb. 8, 2000, the State of Texas indicted Sells for the Dec. 31, 1999 capital murder of Kaylene Harris.
On Sept. 18, 2000, a Val Verde County jury convicted Sells of capital murder for intentionally killing Kaylene Harris by slitting her throat with a knife while in the course of committing burglary of a habitation with intent to commit aggravated sexual assault.
Following a separate punishment hearing, on Sept. 20, 2000, the jury answered affirmatively the special sentencing issue on future dangerousness and answered negatively the issue on mitigation. In accordance with the jury’s answers, the Honorable George M. Thurmond, presiding judge of the 63rd District Court of Val Verde County, Texas, sentenced Sells to death.
On March 12, 2003, the Texas Court of Criminal Appeals affirmed Sells’s conviction and sentence on direct appeal, denying relief on 36 points of error.
While his direct appeal was pending, Sells filed a state habeas corpus application raising four claims of ineffective assistance of counsel. On Aug. 31, 2005, the Texas Court of Criminal Appeals issued an order denying relief.
On Aug. 17, 2006, Sells petitioned for federal habeas relief. However, the federal action was immediately stayed because Sells concurrently filed a successive (second) state habeas application alleging that he is mentally retarded and ineligible for execution under Atkins v. Virginia.
On May 23, 2007, the Texas Court of Criminal Appeals dismissed Sells’s successive habeas corpus application, finding that he failed to make a threshold showing of evidence to support a finding of mental retardation.
Federal habeas proceedings were reopened in August 2008, after which the district court granted Sells funding to investigate and develop his Atkins claim, and time to amend his habeas petition. However, Sells did not file an amended petition and, in July 2010, abandoned the Atkins claim. The federal habeas proceedings were stayed and held in abeyance for a second time in order for Sells to present additional claims in state court.
On Sept. 15, 2010, Sells filed a second successive (third) state habeas application that included 10 claims of ineffective-assistance of counsel. The Texas Court of Criminal Appeals dismissed this application under Texas’s writ-abuse statute.
Federal habeas proceedings were again reopened in December 2011, after which the district court denied Sells’s motions for further time and an additional $65,000 (beyond the resources previously granted him) to investigate habeas claims. On Feb. 23, 2011, Sells filed an amended federal habeas petition with 12 grounds for relief. The U.S. District Court issued a 290-page Memorandum Opinion and Order Denying Relief which rejected Sells’s claims on procedural and merits-based grounds, denied Sells’s request for an evidentiary hearing, and denied Sells a certificate of appealability. The district court issued final judgment the same day.
On July 22, 2013, the Fifth Circuit Court of Appeals denied Sells a COA to appeal two issues, and affirmed the district court’s denial of Sells’s motion for additional funding.
On Oct. 16, 2013, the Fifth Circuit denied Sells’s petitions for panel and en banc rehearing.
On Dec. 11, 2013, the 63rd District Court of Val Verde County set Sells’s execution for Thursday, April 3, 2014.
On Jan. 13, 2014, Sells petitioned the U.S. Supreme Court for certiorari review.
For additional information and statistics, please go to the Texas Department of Criminal Justice website, www.tdcj.state.tx.us.