Sells v. Thaler
| Decision Date | 27 June 2012 |
| Docket Number | CIVIL NO. SA-08-CA-465-OG |
| Parties | TOMMY LYNN SELLS, TDCJ No. 999367, Petitioner, v. RICK THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent. |
| Court | U.S. District Court — Western District of Texas |
Petitioner Tommy Lynn Sells originally filed this federal habeas corpus action in the Del Rio Division of this Court, collaterally attacking his September, 2000 Val Verde County conviction for the capital murder of Kaylene Harris on December 31, 1999. Following a change of venue and multiple stays of this cause to permit petitioner to return to state court and exhaust state court remedies on various claims, including an Atkins claim, petitioner filed his amended petition on February 23, 2011, asserting several claims of ineffective assistance by his trial counsel, complaints regarding the trial court's rulings on evidentiary and procedural matters, and a number of challenges to the constitutionality of the Texas capital sentencing scheme. For the reasons set forth hereinafter, petitioner is entitled to neither federal habeas corpus relief nor a Certificate of Appealability from this Court.
There is no genuine doubt as to the events of December 31, 1999 which resulted in the death of Kaylene Harris. Within hours of his arrest on January 2, 2000, petitioner gave a voluntary, videotaped statement in which he described (1) entering the Harris family residence during the early morning hours of December 31, 1999 through a bedroom window with a butcher knife he had brought with him, (2) entering the bedroom where 13-year-old Kaylene was sleeping with her 11-year-old family friend Krystal Surles, (3) turning on the bedroom light and waking Kaylene, (4) slashing Kaylene's throat with his knife, (5) telling a frightened Krystal Surles to remove her hands from her own throat and then slashing her throat as well, and (6) thereafter exiting the Harris residence through the door.1
Later on the day of his arrest, petitioner voluntarily accompanied law enforcement officers to the Harris residence where he walked them through a videotaped tour of the crime scene and again described his actions on the night of the murder.2
In what her physician described as a "remarkable" and "amazing" turn of events,3 once petitioner fled the scene, Krystal Surles survived her injuries and managed to walk to a neighboring residence, where she indicated nonverbally her need for help and the need for help to be summoned to the Harris residence.4
At petitioner's trial, Krystal Surles testified without contradiction (1) she was awakened by the sound of Kaylene's voice saying "help," (2) when she awoke, the light was on in the bedroom and she could see petitioner's hands covering Kaylene's mouth, (3) petitioner had a knife in his right hand, (4) she saw petitioner slit Kaylene's throat, (5) Kaylene turned, grabbed a poster off the wall, fell, and began making "bad noises," gasping for air and gurgling, (6) petitioner then moved toward Krystal, (7) she promised to be quiet and begged to be spared, (8) petitioner told her to "move your hands," (9) petitioner then reached into the upper bunk where Krystal was lying and cut her throat, (10) Krystal lay still and pretended to be dead, (11) petitioner walked to the bedroom door, looked around, turned off the light, and exited the bedroom, (12) Krystal remained still for another few minutes, then climbed down off the bunk and unsuccessfully tried to leave the house through a bedroom window, (13) she was unable to talk but tried to comfort Kaylene by laying down next to her, (14) she heard a vehicle start up and felt her way to the door, (15) the front door of the house was unlocked, and (16) she walked to the Betz's home to seek help.5
On January 7, 2000, petitioner executed two voluntary written statements detailing his actions on the night of the murder and stating, for the first time, he had cut off Kaylene's underwear and molested her before he slashed her throat.6
On February 8, 2000, a Val Verde County grand jury indicted petitioner on two counts of capital murder, to wit, intentionally murdering Kaylene by cutting her throat while in the course of committing the offenses of (1) burglary of a habitation with intent to commit aggravated sexual assault and (2) aggravated sexual assault.7 Petitioner was indicted separately for the attempted murder of Krystal Surles. The state trial court consolidated both cases for trial.
The guilt-innocence phase of petitioner's trial commenced on September 12, 2000. At the outset of trial, petitioner pleaded guilty to the attempted murder of Krystal Surles.8
In addition to the evidence summarized above, the prosecution presented testimony from a Del Rio waitress establishing that, on the night of December 30, 1999, petitioner (1) repeatedly solicited sex from her, even offering to pay for same, (2) she rejected all his offers, (3) petitioner eventually left the bar where she worked around 2:15 a.m., and (4) petitioner commented at one point that he had a knife.9
Terry Harris, Kaylene's father, testified (1) he knew petitioner through church and had counseled petitioner on marital problems and offered career advice, (2) petitioner had been inside the Harris home at least once and had met all the Harris children, (3) he purchased his truck at the motor vehicle dealership where petitioner worked, (4) petitioner helped him repair a leaky water line in the backyard and he showed petitioner where the family's phone line was located to avoid accidentally cutting the line, (5) the Harris family dog was familiar with petitioner, (6) the evening before Kaylene's murder, he had a conversation with petitioner at a convenience store and informed petitioner he was leaving town on a trip to Kansas, (7) he reached Kansas around six thirty the following morning and unsuccessfully attempted to phone home, and (8) when he returned home, he found his telephone line had been cut near the area where he and petitioner had repaired the leaky pipe.10
Kaylene's mother Crystal Harris testified, in pertinent part, (1) she was awakened on the morning of December 31, 1999 by the sound of the Sheriff's department personnel inside her home, (2) law enforcement officers would not allow her to move toward the rear of the house where Kaylene's bedroom was located, (3) she and her surviving children were removed from their home, (4) she unsuccessfully attempted to telephone her husband, (5) when she retired the night before, all of the doors were shut and locked and all but one window (in her son Justin's bedroom) was locked, (6) petitioner had been to the Harris residence at least three times to talk with her husband, had met her children, and was friendly with the family dog, (7) she did not hear the family dog bark that night, and (8) the family's phone had worked properly the day before Kaylene's murder.11
Kaylene's 14-year-old brother Justin testified (1) he has been blind since birth, (2) he went to bed around 9:30 p.m. on December 30, 1999, (3) his alarm clock went off around 4:30 a.m. while he was in the bath room, (4) someone turned the clock off, (5) he later went back to bed and fell asleep, (6) he never heard anyone in his room that night, (7) when he awoke again, police were asking him if he was okay and taking him outside to a car, and (8) he never heard the family dog bark that night.12
Law enforcement officers testified they recovered petitioner's blue jeans, blue-green shirt, and black jacket from the laundry basket at the Sells residence.13 Law enforcement personnel also testified they recovered a butcher knife with a bent blade from the field across the road from petitioner's residence, i.e., the location where petitioner indicated he had thrown the murder weapon.14
Forensic experts testified (1) blood stains found on petitioner's blue jeans matched those of petitioner and Kaylene,15 (2) a blood stain on Kaylene's tee shirt was consistent with a mixture of her blood and petitioner's blood,16 (3) a pair of pajama shorts found at the base of the bed in Kaylene's bedroom bore stains consistent with a mixture of Kaylene's blood and the blood of another female,17 (4) blood stains found on Kaylene's panties also contained blood stains consistent with a mixture of Kaylene's blood and the blood of another female,18 (5) the knife recovered near petitioner's residence contained traces of a female's blood but not Kaylene's,19 (6) microscopic examination of Kaylene's panties and pajama shorts revealed both had been cut by a knife consistent with the butcher knife recovered near petitioner's residence,20 (7) pink polyester fibers consistent with Kaylene's pink pajama shorts were found on petitioner's shirt, jacket, and blue jeans,21 (8) pink cotton and pink acrylic fibers consistent with Kaylene's pajama shirt were found on petitioner's clothing,22 (9) black acrylic fibers consistent with petitioner's jacket, blue-green fibers consistent with petitioner's shirt, and black polyester and black rayon fibers consistent with petitioner's jacket were all found on Kaylene's clothing,23 and (10) three different types of black fibers, all consistent with petitioner's jacket, were found on Kaylene's clothing.24
The medical examiner who performed the autopsy on Kaylene's body testified, in pertinent part (1) Kaylene suffered a gaping, five-inch wound across the neck which appeared to have been the product of three separate cuts and which caused rapid blood loss and was fatal within several minutes25; (2) Kaylene's neck wound included cuts to the right carotid artery and right jugular vein and the complete cleaving of the top portion of her voice box26; (3) Kaylene sustained a total of sixteen stab wounds, three of which went completely through her body27; (4) four of these stab...
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