Tommy Lynn SELLS
A.K.A.: "Coast to Coast Killer"
Classification: Serial killer?
Number of victims: 1 - 13 +
Date of murders: 1980 - 1999
Date of arrest: January 2, 2000
Date of birth: June 28, 1964
Victim profile: Kaylene "Katy" Harris, 13
Method of murder: Cutting her throat
Location: Missouri/New York/Illinois/Texas, USA
Status: Sentenced to death in Texas on November 8, 2000. Executed by lethal injection in Texas on April 3, 2014
Terry and Crystal Harris lived with their son and two daughters in a trailer home west of San Antonio. They attended Grace Community Church, where they made the acquaintance of Tommy Sells, a used car salesman, and his wife.
Sells visited the Harris home several times, asking Terry for counseling about his marital difficulties. Terry assisted Surles, a family friend, and traveled to Kansas to get their belongings for a move to Texas. Left at home were Terry's wife and children, and the Surles children.
After closing time at a local bar, Sells made his way to the Harris home and entered through an open window. He went to a bedroom, where he saw Kaylene "Katy" Harris, 13, sleeping in the bottom bunk. 10 year old Krystal Surles was sleeping in the top bunk. Sells put his hand over Katy's mouth and brandished a 12-inch boning knife he had brought with him. He sliced off Katy's shorts and underwear and began fondling her. She wiggled free, stood up and screamed. Sells then turned on the light and moved to block the door. Katy saw herself bleeding and said, "You cut me!" Sells then moved behind her, put his hand over her mouth, and sliced her throat twice. Katy dropped to the floor and gurgled. Sells stabbed her 16 more times. "I'll be quiet, I promise. I won't say anything," Krystal said as Sells moved toward her. He reached over and sliced her throat. She fell to the ground, pretending to be dead as Sells walked out the front door. Assuming that everyone in the house had been killed, Krystal ran outside to a neighbor's house and police were called.
Krystal survived the attack, identified Sells from a photopack, and testified at trial. Sells confessed to killing Katy Harris and attacking Krystal Surles. He went with police to the residence and gave a videotaped re-enactment of the crime, which aligned with Krystal's account.
This confession was only the beginning, however. Over the next few months, Sells confessed to a string of murders all over the United States, spanning three decades. He used the nickname "Coast to Coast" for himself to describe both his migratory lifestyle and his trail of killings. He traveled by hopping trains and stealing vehicles and made money by working, panhandling, or stealing.
Texas no longer offers a special "last meal" to condemned inmates. Instead, the inmate is offered the same meal served to the rest of the unit.
Texas Department of Criminal Justice
Tommy Lynn Sells
TDCJ: Number 999367
Date of Birth: 6/28/1964
Date Received: 11/8/2000
Age (when Received): 36
Education Level (Highest Grade Completed): 08
Date of Offense: 12/31/1999
Age (at the time of Offense): 35
County of Offense: Val Verde
Hair Color: Brown
Height: 5' 9"
Weight: 195 lb
Eye Color: Hazel
Native Country: Alameda County, California
Prior Occupation: Laborer
Prior Prison Record:
Missouri Department of Corrections on a 2 year sentence for felony theft. Confined 8 months and released on parole on 12/18/1985. Returned as a parole violator with a new conviction of driving under the influence. Confined 16 months and discharged. Wyoming Department of Corrections on a 2 year sentence for vehicle theft. Confined 16 months and discharged. Wyoming Department of Corrections on a 2-10 years sentence for malicious wounding. Released on parole.
Summary of Incident:
On 12/31/1999, Sells entered a Del Rio residence occupied by a 13 year old white female and a 10 year old white female. Sells entered the residence with intent to sexually assault the 13 year old. Sells slashed her throat and stabbed her multiple times, resulting in her death. Sells then slashed the throat of the 10 year old. The 10 year old survived the attack.
Texas Attorney General
April 3, 2014
Media Advisory: Tommy Lynn Sells scheduled for execution
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.
Killer who complained about execution drug is put to death; Slain girls' families speak out, and don't mince words
By Drew Joseph - Houston Chronicle
April 3, 2014
HUNTSVILLE — Serial killer Tommy Lynn Sells - a drifter who has been linked to the deaths of more than a dozen people, including a 9-year-old girl - was executed Thursday, despite appeals from attorneys who raised concerns that a secretly made drug used to kill him could deliver a painful death. Attorneys for Sells had asked the U.S. Supreme Court to block his execution because Texas officials have refused to disclose details about the pentobarbital to be pumped into his body. The high court denied the request.
Sells declined to give a final statement or make eye contact with his victims' families Thursday as he was strapped to a gurney and executed.
Terry Harris, the father of another child victim, broke the silence, commenting as the drugs took effect that the death was "way more gentle than he gave out." "What a great day," Harris added after Sells was covered with a blanket and the families were escorted out of the viewing area. Texas Department of Criminal Justice officials pronounced Sells dead at 6:27 p.m., about 13 minutes after he was injected with a fatal dose of the drug.
A Val Verde County jury sent Sells, 49, to death row in 2000 for the December 1999 stabbing death of 13-year-old Kaylene Harris in her family's trailer home near Del Rio. He confessed after a friend who was sleeping over that night survived having her own throat slit and helped identify him to authorities.
He later pleaded guilty in Bexar County to strangling 9-year-old Mary Beatrice Perez, who was abducted in 1999. The missing child, who loved to dance and preferred to be called Mary Bea, was found dead in a creek bed a week later, clad only in a Mickey Mouse T-shirt and a single white sock. Bexar County District Attorney Susan Reed agreed to drop her bid for a second death sentence, instead settling on life in prison, in exchange for Sells' plea.
As witnesses watched the execution from an enclosed viewing area feet away from his gurney, Sells smiled faintly at two friends there. He closed his eyes and gasped as the drug was administered. A chaplain holding a Bible stood near his feet, clutching his right ankle. "Whatever went through his veins, he went too quick for my satisfaction," Mary Bea's grandmother, Mary Torres, later said outside the corrections facility, where families of both girls shook hands and embraced. "I wanted to see him die," added Shawn Harris, Kaylene's brother. "That's honest. I wanted to know that he could no longer hurt anybody."
In the three days leading up to his execution, Sells spent much of the time talking to visitors, prison officials said. He packed his personal property early Thursday morning and was described as reserved. His last breakfast consisted of three pancakes, oatmeal and apple sauce. The execution came despite last-minute litigation by attorneys for Sells and another death row inmate seeking to have the U.S. Supreme Court intervene because Texas prison officials have refused to disclose details about its newest batch of lethal drugs.
Lawyers for Sells said wanted to know more about how the drug is manufactured in order to evaluate whether it would result in a cruel and unusual punishment. "It is our belief that how we choose to execute prisoners reflects on us as a society," said a statement released by Sells' lawyers, Maurie Levin and Jonathan Ross, moments after the high court's decision was released. "Without transparency about lethal injections, particularly the source and purity of the drugs to be used, it is impossible to ensure that executions are humane and constitutional."
Texas officials contended that they are not required to disclose details about the drug suppliers or other information because to do so would breach security of the supply chain and could subject suppliers to harassment and threats. They said there is no evidence pointing to the likelihood of severe pain. The families of both slain children were on a list to witness the execution. Kaylene's witnesses included her father, brother and two grandmothers. Also present were the mother and grandmother of Mary.
Some members of his victims' families said his death was far from cruel compared to how he treated others. Others said they simply didn't care whether Sells suffered. "We all have suffered so many years," said John Torres, Mary Bea's grandfather. "It's payback time."
With supply of new drugs, state executes serial killer
By Cody Stark - ItemOnline.com
April 03, 2014
HUNTSVILLE — A confessed serial killer was put to death Thursday evening using the state’s new supply of its lethal injection drug. Tommy Lynn Sells, 49, was executed for the 1999 murder of a 13-year-old Kaylene Harris in Del Rio.
His death sentence was carried out about an hour after the U.S. Supreme Court rejected a last-minute appeal to postpone the execution until Texas provided his attorneys with more information on where it got its fresh supply of pentobarbital. The state’s last batch of the powerful sedative, which was obtained from a Houston-area compounding pharmacy, expired last month. Texas officials refused to disclose the source of the new drug, citing safety concerns for the company and its employees.
Sells did not make a final statement Thursday. He laid strapped to the gurney and smiled at his personal witnesses as the drug was pumped into his body. He took several deep breaths, closed his eyes and lost consciousness. Sells was pronounced dead at 6:27 p.m., 13 minutes after the lethal dose began. He is the fifth inmate to be executed in Texas this year.
Terry Harris, the father of Kaylene Harris, watched as Sells was executed, saying the injection was “way more gentle than what he gave out.” “What a great day!” the father said as witnesses turned to leave the death house.
Sells’ lawyers made a plea to the Supreme Court earlier in the day after a federal appeals court on Wednesday allowed the execution to remain on schedule. A lower court had stopped the execution Wednesday, ordering the Texas Department of Criminal Justice to reveal more information about its drug supplier, but the ruling was quickly tossed on appeal.
Sells, who claims to have committed as many as 70 killings across the U.S., also lost an appeal before the high court that contended his case should be reviewed because he had poor legal help during his murder trial. In their drug argument, Sells’ attorneys argued they needed to know the name of the pharmacy now providing the state with pentobarbital used during executions in order to verify the drug’s quality and protect Sells from unconstitutional pain and suffering. But the Supreme Court, like the 5th U.S. Circuit Court of Appeals, sided with Texas prison officials, who argued that information about the drug supplier must be kept secret to protect the pharmacy from threats of violence. The high court justices did not elaborate on why they made the decision, which came about an hour before Sells’ scheduled execution. State attorneys argued the new pentobarbital stock falls within the acceptable ranges of potency. Sells’ attorneys said they had no way of confirming that. The Supreme Court last month rejected similar arguments from a Missouri inmate’s attorneys who challenged the secrecy surrounding where that state obtained its execution drugs, and the condemned prisoner was put to death. The court case challenging the state’s stance also included 44-year-old Ramiro Hernandez-Llanas, who is scheduled for execution next week.
But the 5th Circuit ruling affected only Sells. A jury convicted him of capital murder in 2000 for the stabbing death of Kaylene Harris and slashing of her 10-year-old friend, Krystal Surles, who survived and helped police find Sells. The girls were attacked on New Year’s Eve 1999 as they slept in Harris’ home in Del Rio.
Tommy Lynn Sells
In July of 1983, a man matching Tommy Lynn Sells's description was seen leaving the St. Louis, Missouri home of Thomas and Colleen Gill. The bodies of Colleen and the couple’s 4-year-old daughter Tiffany were found beaten to death. 1985, Tommy Lynn Sells was working at a carnival in Forsyth, Missouri. There he met Ena Cordt, 35, who had brought her 4-year old son Rory to the carnival as a treat. Ena and invited Sells back to her home that same evening. According to Sells, he had sex with Ena, but awoke during the night to find her stealing from his backpack. Seizing her son's baseball bat, he beat her to death. He also murdered her son in case he could be used as a witness. The two badly bludgeoned bodies were found three days later.
On the evening of December 30, 1999, Sells was at a convenience store when Terry Harris drove up and spoke to him. Harris said that, when he returned from Kansas, he would repay the $5,000 drug debt he owed Sells. Later that evening, Sells went to a bar where he stayed until closing time. A waitress there, Noell Houchin, confirmed that Sells arrived around 10:00 p.m. and stayed for four hours. During that time he drank four beers and seemed obsessed with having sex with her. Houchin told the jury that Sells repeatedly asked to have sex with her, even offering to pay for it, despite her refusing repeatedly and telling him that she had a boyfriend. Houchin also testified that Sells did not seem intoxicated when he left around 2:15 a.m. After leaving the bar, Sells went to a flea market and drank more beer.
After a while, Sells started thinking that Harris "had been fucking with" him about paying the debt, and he decided "to do something about it." Sells thereafter retrieved more beer and a knife from his house and drove over to Harris's house. Sells parked down the street from Harris's home, which was located in a somewhat remote area. When Sells entered the backyard, the dog, who was in the front yard, began to bark. Sells walked to the front yard and petted the dog. Because Sells had previously befriended the Harris's dog, the dog stopped barking. After trying unsuccessfully to break in through the back door and a locked window, Sells found an open window and entered the residence.
After looking in various rooms, Sells went into a room where two young girls were sleeping on bunk beds. Sells laid on the bottom bunk with thirteen-year-old Kaylene Harris and cut off her panties with his knife. After Sells inserted his finger into the girl's vagina, she jumped out of bed. Sells, however, blocked the door and stabbed Katy as she tried to escape. Sells then cut Katy's throat several more times and went over to her eleven-year-old companion, Krystal Surles, who was still on the top bunk, and cut her throat. Sells left the trailer, wiped his fingerprints off a doorknob, and took two window screens with him because they had his fingerprints on them. Sells disposed of the screens and his knife on the way to his home.
Krystal survived the attack and walked about a quarter of a mile to a neighbor's house to get help. She later supplied a description of the man who had attacked her, and Sells was subsequently identified and arrested. When Harris returned home, he found the telephone line had been cut. He told the authorities that Sells had been to his home on several occasions and had learned where the telephone line was the day Sells helped Harris fix a leaking pipe at the house. Scientific tests conducted on the clothes recovered from Sells and testimony from the medical examiner regarding Katy Harris's wounds corroborated statements Sells gave to the police concerning the incident. However, Sells claimed that he had no specific intent to commit sexual assault when he broke into the Harris home. Rather, everything happened spontaneously.
UPDATE: Stayed due to a challenge to identify the manufacturer of the drugs that will be used in the lethal injection.
UPDATE: When asked if he wanted to make a statement before his execution, Sells replied: "No." Terry Harris, whose 13-year-old daughter, Kaylene Harris, was fatally stabbed by Sells in 1999 in South Texas, watched as Sells was executed, saying the injection was "way more gentle than what he gave out." "Basically, the dude just took a nap," the father told reporters later outside the prison. Earlier in the day, the US Supreme Court declined to halt the execution based on claims by Sells's lawyers that he had the right to know the name of the provider of the drug that would be used in the execution. "My sister didn't get the constitutional pain and suffering," said Shawn Harris, the victim's brother, adding that Sells' punishment was "pretty easy" compared to what his sibling suffered: being stabbed 16 times and having her neck repeatedly slit.
Tommy Lynn Sells is an American serial killer. He was born on June 28, 1964 in Oakland, California, but lived mostly in Frisbee, Missouri.
Sells and his twin sister, Tammy Jean, contracted meningitis when they were 18 months old. While Sells suffered a high fever, he survived. His sister, however, died from the inflammation. Shortly thereafter, Sells was sent to live with his aunt Bonnie Woodall in Holcomb, Missouri. He lived with Woodall until he was five.
When Sells was eight he began spending time with a man named Willis Clark from a neighboring city who would later be identified as a child molester.
Sells started traveling in order to find work. Because he was indigent at the time, he hitched rides, hopped trains and at one point stole a vehicle. He held several different jobs, often doing menial labor. His limited education rendered him under-qualified for many higher paying jobs.
Sells has claimed he committed his first murder at age 16.
In July 1985, when he was 21 years old, Sells was working at a carnival in Forsyth, Missouri. There he met Ena Cordt, 35, who had brought her 4-year old son to the carnival as a treat. Cordt found Sells attractive and invited him back to her home that same evening. According to Sells, he had sex with Cordt, but awoke during the night to find her stealing from his backpack. Seizing her son's baseball bat, he beat her to death. He also murdered her son in case he could be used as a witness. The two badly bludgeoned bodies were found three days later, by which time Tommy Lynn Sells had moved on.
In 1997, 10-year-old Joel Kirkpatrick, son of Julie Rea Harper, was murdered. His mother was convicted, but the conviction was overturned. Her family told police Sells had invaded their home and killed Kirkpatrick because the mother was rude to Sells earlier that night at a nearby convenience store. Then, in 2002, author Diane Fanning corresponded with Sells. In a letter to Fanning, Sells confessed to murdering Kirkpatrick. Fanning's testimony before the prisoner review board, according to the Innocence Project, helped land Harper a new trial and, ultimately, an acquittal. Fanning's resulting book, Through the Window, details Sells' cross-country crime spree.
Sells is also suspected to be the perpetrator in the following crimes:
The murder of Suzanne Korcz in New York during May 1987
The November 1987 murder of the Dardeen family in Illinois.
Killing a co-worker in Texas during April 1998.
The murder of Katy Harris in Texas in 1999.
The sexual assault and murder of a child, Hailey McComb in Lexington, KY
Arrests and confessions
Sells has recently claimed to have killed upwards of 70 people, according to an interview with Columbia University forensic psychiatrist and personality expert Dr. Michael H. Stone in Discovery Channel's Most Evil.
On December 31, 1999 in the Guajia Bay subdivision, west of Del Rio, Texas, Sells fatally stabbed 13-year-old Katy Harris 16 times and slit the throat of 10-year-old Krystal Surles. Surles survived and received help from her neighbors. Ultimately, Sells was apprehended using a sketch from the victim's description.
Tommy Lynn Sells, Texas Department of Criminal Justice (TDCJ) # 999367 is currently on death row in the Allan B. Polunsky Unit near Livingston, Texas. The TDCJ received him on November 8, 2000.
Tommy Lee Sells was arrested January 2, 2000, after he slashed to death 13-year-old Kaylene Harris on New Year's Day.
During the same assault Sells, 35, slashed thethroat of 10-year-old Kristal Surles, but the girl survived. Kristal, who is from Kansas, was visiting her friend Kaylene in Guajia Bay, about 14 miles north of Del Rio on US Highway 90 in Texas, when Sells came upon them.
In custody Sells, a drug-addict and drifter, admitted to the Rangers that he had killed between 20 and 50 people in several states over the last two decades.
To date Sells has been charged with one homicide in Texas and one in Kentucky. However, he is considered a strong suspect in eleven more deaths in half-dozen states.
Not unlike serial confessor Henry Lee Lucas, Sells has traveled to Idaho, Nevada and Arkansas to try to confirm slayings that he has confessed he committed. One of the alleged victims in Central Arkansas was found alive and well. "We went to Little Rock, Arkansas, and he was able to take us to a house where a burglary and shooting had occurred," said Texas Ranger John Allen said. "For 18 years he was sure he had hit the guy, but it turns out the guy just fell to the ground and lay there like he was hit."
In March Tommy Lee Sells guided detectives around Pulaski County in Central Arkansas looking for evidence of two murders he said he commited there in early 1982. Sells eventually guided the detectives to a "blue hole" in southern Pulaski County and told a story of the rape and murder of a woman whose body was thrown into the deep water of a bauxite pit. Sheriff's deputies have not yet sent divers into the pit to find the body, saying they won't until they can confirm other parts of Sells' tale. "It's hard to justify spending money on divers until we can get some sort of corroborating evidence that there is a missing person," Pulaski County sheriff's office spokesman John Rehrauer said. "We have not been able to establish a connection to what Sells thought happened and anything in our records. Until we do, we're not going to go to the expense of diving."
Several weeks after the Little Rock trip, Texas authorities took Sells to southern Idaho on a similar mission, because he had confessed to three area murders.
Authorities believe that two of those murders occurred in the fall of 1988 at a bridge overlook just outside of Twin Falls. The third murder occurred the following year in neighboring Gooding County. "He said he was driving a stolen black Dodge van in Salt Lake City and brought the woman -- who he had been seeing for a couple of weeks -- and her son to spend the night on the Snake River," a Twin Falls County sheriff's spokesman said. "He said he killed them and dumped them in the river." As of now police have no missing persons report to match the alleged killing. In the third murder, Sells confessed to abducting a woman who was hitchhiking from Canada to Salt Lake City.
Tommy Lynn Sells
A particularly cruel sociopath, Tommy Lynn Sells has confessed to over a dozen homicides, many of the children. Drifting throughout the country, only interrupted by the occasional jail term, Sells seemed to target small children and particularly enjoyed multiple murders.
Sells has already been convicted of a murder in Del Rio, Texas. The killer entered the Harris family home on December 31, 1999, and murdered 13-year-old Kaylene, sexually assaulting her before cutting her throat and attempting to do the same to friend Krystal Surles, 10. He was sentenced to death for the Harris murder on September 20, 2000.
Among the other murders Sells is credited with are the killings of a nine-year-old child in Texas, the slaying of a mother and her five-year-old child in Forsyth, Missouri, the killings of another mother and child in West Virginia, and yet another similar crime in Tennessee.
Perhaps Sells most heinous crime, and that's saying a lot, was the quadruple murder of the Dardeen family in Ida, Illinois, on November 18, 1987. Befriended by the family and invited for a meal at their mibile home, Sells shot Russell Dardeen in the head in a nearby field and beat his wife and three-year-old son to death with a baseball bat. During the brutal attack Mrs. Dardeen gave birth to a girl, two months premature. Faced with the unique situation Sells simply turned the bat on the newborn and beat her to death also.
Sells currently faces charges in the Kentucky rape-murder of a thirteen-year-old girl and in Illinois for the Darden family slayings. More charges, and possibly many more confesions, are sure to come.
Since his conviction in September of 2000, Sells has since admitted to killing fellow carnival worker Thomas Brose, who was found shot to death in a motor home in San Antonio, Texas on April 15, 1998. Local authorities are looking into his claims. Sells is also under investigation in San Antonio for the murder of Marie Bea Perez, 9, who he has confessed to slaying after Perez was abducted from a market on April 18, 1998, just three days before Brose was killed. She was found dead one week later.
Serial killer stayed in city
February 21, 2006
It's not known how serial killer Tommy Lynn Sells, 41, now on death row in Texas, got to Charleston in the spring of 1992.
The inveterate drifter may have hitchhiked, hopped a freight train or stolen a car. That's how he'd been wandering the country since the age of 14.
By the time he arrived here, Sells is believed to have murdered 15 people, including five children.
A 19-year-old woman on the West Side narrowly missed becoming No. 16 in a bloody melee inside a Grove Avenue apartment.
Her name is Fabienne Witherspoon.
She is now a 33-year-old nurse and mother of three small children in Danville, Ill.
Nobody knows what attracted Sells to West Virginia. Diane Fanning, whose book "Through the Window" chronicles his gruesome crimes, said he liked mountains.
Witherspoon came here a few months before Sells in 1992. She was with her fiance, an Army man she'd met while living on an Air Force base with her parents in Tacoma, Wash.
Her fiance's parents lived in the Charleston area.
Born in 1972 in Lakinheath, England, Witherspoon grew up on Air Force bases around the world. She graduated from high school in Bremerhaven, Germany.
Witherspoon said she and her fiance planned eventually to settle down in the Charleston area.
When he left for training in Alabama, Witherspoon stayed behind with his family members.
Her fiance's mother, who worked for the state, suggested one day that Witherspoon might get a little privacy if she watched her boss's cat at a Grove Avenue apartment.
Witherspoon took her up on the offer.
She'd been staying at the Grove Avenue apartment for only a day on May 13, 1992, when she saw Sells panhandling in the Pennsylvania Avenue-Washington Street area.
Witherspoon had walked to a job interview with Clinique cosmetics that day and was excited about the prospect of working at Town Center.
"I WILL WORK FOR FOOD"
She also thought she might have been pregnant and had a test done at the health department on Lee Street. It turned out negative.
She was on the way back to Grove Avenue when she saw the killer with a crudely lettered sign. He had played on people's sympathies in the past. The sign was his way of getting close to potential victims.
"I will work for food," it said.
"I saw him under the underpass," Witherspoon said. "Of course, me being an Air Force brat, I'd never seen a homeless person. He didn't look scary. He looked approachable, like I felt sorry for him."
She asked him if he was hungry and if he had a family.
Sells whipped out a picture of three children and said he, the kids and his wife were all homeless and living under a bridge.
Witherspoon said the woman she was cat-sitting for had bought some junk food for her that she didn't want, so she figured she might as well give it to Sells.
The two of them started walking to Grove Avenue.
On the way, they stopped at a Go Mart. Witherspoon said she bought Sells a newspaper so he could scan the help-wanted ads.
"I'd always lived sort of a sheltered life," Witherspoon said. "I never thought anything bad could happen."
At the apartment, Witherspoon told Sells to wait outside while she went in and packed up the food. He asked if there was anyone else in the apartment. Witherspoon said no.
She figured he was thirsty, and took him a Coke. By the time she brought it to him, Sells was inside the front door.
"That made me nervous," she said. "I thought I just need to quickly get him on his way."
She asked Sells if he needed anything else. He said his wife needed underwear, which Witherspoon thought was strange, but she wanted him out of the apartment.
She walked to a bedroom and started taking underwear out of her suitcase.
Meantime, Sells locked the doors, got a steak knife, came into the bedroom, and told her to do what he said and she wouldn't get hurt.
He repeatedly raped her, and then took her into the shower to rape her again.
In the bathroom, she said, she surprised him by grabbing a ceramic duck about the size of a football and clubbing him on the head. By the time she was done swinging away, all that was left in her hand was a beak.
"And he was still standing," she said. "I thought, ‘He's a little bit confused ... I just have to fight.'''
She took the knife from her dazed assailant and began stabbing him over and over.
Witherspoon then raced frantically for the front door, but Sells caught her and threw her into a room off the hallway. She landed on the bed face down, cutting her hand open with the knife.
Sells took back the knife, tied Witherspoon's hands to her feet with tape, and held the knife to her throat.
Witherspoon said that if Sells would just leave, she wouldn't tell anybody. She also said she'd just found out she was pregnant and that her husband was going to be home very soon.
Witherspoon told police that Sells threatened to cut her voice box out so she couldn't talk.
Sells covered her head with a quilt and made what Witherspoon called a "wimpy" attempt at smothering her. Then he whacked her over the head with a piano stool and left.
As he was leaving, she remembers him saying, "I can't believe I am still alive."
"I thought, ‘Him? What about me?'" Witherspoon said.
The next thing she remembers is waking up on the front steps of the apartment. She was naked, bloody and screaming.
The police came. An ambulance took her to the hospital, where she had plastic surgery on her hand and stitches in her head. A rape counselor met with her later.
Sells, who had 18 stab wounds, spent seven days in the hospital.
Witherspoon recovered at her fiance's mother's house. She sat alone in a bedroom most of the time.
"RELIVING THE ATTACK IN HER MIND"
"I felt really stupid," she said. "Very embarrassed. I just wanted to hide."
Like many rape victims, she wound up feeling as if it was all her fault. She kept reliving the attack in her mind, thinking of things she should have done differently.
After a while, she went to live with her fiance Alabama and the two married. Witherspoon said they probably jumped into the marriage too quickly, believing perhaps it would help her overcome her problems.
Witherspoon said she felt no other man would want her.
The marriage fell apart after a little over a year.
After Sells' week in the hospital, he was taken to the county jail on Virginia Street.
In September 1992, a Kanawha grand jury indicted him on five counts of rape and felony assault.
Three days into the trial, on June 25, 1993, Sells pleaded guilty to the lesser charge of malicious wounding. The prosecution said it had become aware of inconsistencies in Witherspoon's testimony.
"It was his word against mine," Witherspoon said. "He said I attacked him. He tried to turn around and make it sound like I just started beating on him."
"They didn't give me a choice," she said of the prosecution's deal with Sells. "They just told me, ‘We're going to have to do this.'"
Former Prosecutor Bill Forbes said at the time, "While we believe her and her story, serious questions arose sufficient to warrant a plea."
Witherspoon said it was humiliating.
"I just felt like I was on display," she said. "Like people were just doubting the hell out of me."
After the trial, Witherspoon said she tried to block the attack out of her mind. Eventually, she found some success. After a while, she'd forgotten Sells' name.
"I didn't even think about it anymore," she said. "It was the weirdest thing."
Ten years after the attack, however, a TV program triggered a flood of horrible memories.
At the time Witherspoon was living in Oregon with her third husband and children.
Witherspoon said she was in the kitchen one night when she overheard the CBS newsmagazine "48 Hours" in the other room. The segment dealt with Sells, his brutal murder of a 13-year-old Texas girl, and his confessions to authorities about murders all over the country.
"I just had a breakdown," she said. "I just started crying. I wondered, ‘Why did I live when all these other people died?' "
Others who encountered Sells during his six weeks of freedom in the Kanawha Valley doubtless have reason to wonder as well.
After being released from a Wyoming prison in January 1991, Sells made his way to Colorado, Florida and Charleston, S.C., before arriving here sometime after April 2, 1992.
Records from his trial provide a glimpse of his stay here.
In early April, Sells met a 26-year-old woman at the Grand Palace, a gay bar on Brooks Street.
The woman brought Sells home with her to the Bigley Avenue apartment she shared with her 46-year-old mother and her mother's 42-year-old boyfriend.
Sells spent the night and left the next day.
About a week later, he returned when the mother's boyfriend was alone. He let Sells in and the two had a beer. They polished off what the man had and Sells went out and bought a 12-pack. The two drank all of that
Sells wound up staying at the Bigley Avenue apartment for the next three-and-a-half weeks, spending his days panhandling on the streets and his nights carousing.
GOOD SAMARITAN CONTRACTOR
A local contractor who asked that his name not be used saw Sells standing on Clendenin Street with his sign: "I will work for food."
The contractor drove past him, all the way onto the interstate. Then his conscience took over. He pulled off at the next exit, drove back to Clendenin Street and gave Sells a break.
"I've never pulled a stunt like that," he said.
The man described Sells as polite and hard-working.
He took Sells to his home, where the killer spent four hours raking leaves, burning brush and mowing grass.
The man made Sells a sandwich for lunch.
"It's a worrisome thing," the man said. "I'm not easily fooled. I read people pretty well. But looking back on it ...
"I can't give you a good reason why I picked him up to begin with, other than I needed some yard work done and I thought the man could use a job."
The man's wife was at work and his two young children were at school while Sells worked in the yard. Sells told the man he was from Missouri.
"He was not in my house, not for 30 seconds," the man said.
The man gave Sells some clothes and money and drove him back downtown. He thanked Sells and went on his way. The man figures the Lord was watching over him that day.
About a week later, Sells phoned the man, said he was in jail and needed some clothes. The man took some clothes to the county jail on Virginia Street.
He said he accepted two more collect phone calls from Sells and then stopped, although Sells kept trying to contact him.
He still has a 6-inch stack of letters that Sells sent from jail. In several of the letters, Sells described being "saved." Sells also sent the man a signed copy of the Bible.
By early May, Sells had worn out his welcome at the Bigley Avenue apartment. The mother of the 26-year-old woman he'd met at the Grand Palace grew annoyed because of the strangers Sell brought home every night. She told him to leave.
Sells promptly moved in with the woman's 25-year-old daughter, who lived with her two small children in an apartment in Pinch.
That's where he was arrested after the attack on Witherspoon.
Melissa Robinson, a Charleston lawyer, defended Sells in 1992.
"I never felt threatened or like he was a dangerous person," Robinson said. "Tommy likes to talk. He would probably sit and talk to anybody who listens to him. He was always very friendly to me. Then again, I was also part of the team that was defending him."
Judge Tod Kaufman sentenced Sells to between two and 10 years in prison. He was given credit for 13 months served in jail.
He served part of his sentence at the Huttonsville Correctional Center and the rest at the Mount Olive Correctional Complex, which opened in 1994.
For a few months in 1995, both he and Dana December Smith, now 42, served time together.
Smith, of Logan, had been convicted of killing Margaret McClain, 63, and her daughter Pamela Castoneda, 36, at their Leewood home in 1991.
Prosecutors believe Sells and Smith could have discussed the murders, but Smith insists he never met Sells in prison.
In 2000, Sells told Texas Rangers that he -- not Smith -- killed the West Virginia women. That prompted Smith's lawyers to seek a new trial for him in Kanawha Circuit Court.
Last week, however, in an interview with a reporter from the Del Rio (Tex.) News-Herald, Sells recanted his confession.
While imprisoned in West Virginia, Sells got engaged to a Rand woman who had three children. She broke up with him, and he later married another woman.
In May 1997, he was released. Sells and his bride left West Virginia for Tennessee.
Sells has said that in November of that year, he killed 13-year-old Stephanie Mahaney of Springfield, Mo. Authorities found her body in a pond.
Sells was selling used cars in Del Rio when he committed the crime that put him on Death Row.
On New Year's Eve, 1999, he crept into 13-year-old Kaylene Harris' bedroom, sexually assaulted her, slit her throat, and slashed the throat of a 10-year-old friend of Kaylene's who was spending the night. Kaylene died.
Sells also has confessed to killing an Illinois family on Nov. 18, 1987. It was an especially heinous crime.
Sells said he met Keith Dardeen in a truck stop in Ina, Ill. Dardeen felt sorry for Sells and took him home. Sells said he shot and killed Dardeen and raped his pregnant wife, Ruby Elaine. He said he then beat the woman and her 3-year-old son to death with a baseball bat.
Born in Oakland, Calif., Sells reportedly began drinking his grandfather's liquor at the age of 7. He was molested when he was 8, and started smoking marijuana when he was 10.
He claims that at 13, he tried to rape his mother and that his family moved out of their mobile home without telling him.
At 14, he hit the road, and says he killed for the first time in Mississippi in 1979 when he was 15.
Death row inmate Sells discusses crimes in exclusive interview
February 11, 2006
Earlier this week, convicted killer Tommy Lynn Sells was given his execution date by a judge in Del Rio, the same place where a jury found him guilty of killing a young girl.
KENS 5 traveled to the Val Verde County Jail and sat down with Sells, in what might be his last interview before he's put to death in May.
"I killed someone, they're killing me," Sells said.
It was New Year's Eve 1999 when an intruder climbed through a window and into a mobile home on Lake Amistad, just outside of Del Rio, where 10-year-old Krystal Surles and 13-year-old Kaylene "Katy" Harris were sleeping.
The throats of both Krystal and Katy were slashed, and Katy died.
"Two young girls, we'd never had a crime of this brutality occurring anywhere in this county," Val Verde County Sheriff D'Wayne Jernigan said.
Krystal pretended she was dead, and later helped investigators identify Sells.
"What happened to this little girl changed next year and the year after," Sells said. "I ain't gonna be out there hurting no one."
When asked if he was talking about Katy, Sells said, "Yes ma'am. Because of her death, there won't be no more."
Before Katy was killed, there were many other victims.
In April 1999, San Antonio's Fiesta was in full swing when little Mary Bea Perez was snatched from her grandmother's grasp. Days later, Mary's body was found along a nearby railroad trestle. Sells is willing to confess to her murder, but not willing to talk about why he did it.
"You know what, I'm not going to drag that little girl over the coals no more," he said. "I took a life sentence. I stepped up and said I done that. Closure's been done on that."
Now set to die May 17, Sells said the drug-induced fog that filled his mind before he was caught has cleared, and his conscience could help other families find closure as well.
When asked if there were families with unsolved murders that Sells may know something about, he said there were. And investigators have all they need.
"Most everything that can be gleaned from him as an individual — fingerprint, DNA," Jernigan said. "He can be gone and we can still solve crimes."
There's something else Sells can provide before he dies — insight into what turns a man into a serial killer. Sells called himself Coast-to-Coast, referring to the locations where his murders were committed. More than 15 murder cases have enough evidence against Sells to go to trial, but he's suspected in as many as 70 deaths.
Sells said his life started to unravel at age 7, when he was sexually abused by a relative. The abuse continued until he was 14 years old, when he tried to reach out to a school counselor.
"That counselor wrote plain as day, 'If you don't help this kid, we're gonna lose him,'" Sells said.
On death row, Sells has found God, his mother, a girlfriend who visits him regularly, and the need to write poetry, with the final chapter of his life now being written.
When asked where he's headed when he dies, Sells said, "Where am I going? I'm going to heaven. Society gave me their judgment. I've got no choice but to accept it. Now it's between me and my maker."
The interview lasted about two hours, during which Sells refused to say he was sorry. He said if he did apologize and show remorse, people would throw stones.
Sells said he won't fight his execution, and will go to his death on May 17 without a last statement.
Serial killer casts new light on death of boy
October 17, 2005
LAWRENCEVILLE, ILL. -- "I followed the woman from the convenience store, to a driveway she pulled into. And I hung around several hours, till it come wee hours of the morning. Then I went into this house . . . I go to the first bedroom I see . . . I don't know whose room it is and, and, and, and I start stabbing."
So begins an 86-page transcript of serial killer and former St. Louis resident Tommy Lynn Sells, as interviewed two years ago in a Texas prison by an Illinois prosecutor. He was there to investigate Sells' claim to the stabbing death in 1997 of Joel Kirkpatrick, 10, in Lawrenceville, Ill.
Joel's mother, Julie Rea Harper, had been convicted of the killing - despite her story, from the beginning, that a masked intruder stabbed her son in his bed, struggled with her and disappeared.
Harper's conviction was overturned last year on a technicality. Her new trial is set for July, freshly opening an old wound in Lawrenceville, a small downstate town near the Indiana border. A judge has moved the trial to Carlyle, in Clinton County, to avoid local publicity.
After months of wrangling this year between the prosecution and defense, the transcripts of Sells' jailhouse statements will be allowed in as evidence for the defense.
That may turn out to be a mixed victory for Harper.
A Post-Dispatch review of the transcripts and other documents found clear similarities between Harper's initial story from 1997 and Sells' statements in 2003. They include a generally consistent account from Sells about the mother's and son's movements the night of the killing; a similar sequence of events in describing a stabbing in the dark bedroom and a struggle with a woman; and even an accurate description of the socioeconomic look of the neighborhood where Harper lived.
But the Sells transcripts also are inconsistent with Harper's story. Most notable is Sells' insistence that he wasn't wearing a mask, a key element of Harper's story. There is also Sells' matter-of-fact admission that part of the reason he agreed to talk to Illinois officials is to get out of the clutches of what he calls a "15th-century" Texas legal system.
Complicating matters is that, at times in the interview, Sells himself - who has claimed to have killed as many as 70 people over the past 20 years - admits he is unsure whether Joel was among them:
Uh, you all haven't asked this, but I will go ahead and tell you this. Do I think I'm the one that killed this kid? Yes . . . Uh, if it wasn't this kid I killed, then there's a murder out there that, that we still ain't undug yet."
Sells, 41, lived in St. Louis in the 1990s. He is on death row in Texas for the fatal stabbing of a 13-year-old girl in 1999. He has confessed to numerous other murders, including the slaying in 1987 of a family of four in Ina, Ill., about 75 miles southeast of Lawrenceville. A grand jury in Springfield, Mo., indicted him two years ago in the slaying in 1997 of 13-year-old Stephanie Mahaney - a stabbing that took place two days after Joel was fatally stabbed in Illinois.
Children have been Sells' primary targets. He ended up on death row in Texas because yet another child, a 10-year-old girl, survived a slashed throat to testify against him.
Sells' suspected murders also have had a common thread of being committed with weapons he found in the homes of his victims - knives, and a baseball bat in one case - and of having no apparent motive.
Sells himself, in the transcripts, appears to ponder the senselessness of his crimes:
"My life don't make a lot of sense . . . . It don't make sense that I go around the country killing people. Period. It don't make sense doing that."
The crucial question
That senselessness fits the story Harper has been telling since the night Joel was murdered, her supporters claim. They note that the most damning argument in her first trial - that it's unlikely a man would break into a house and murder a child for no reason - is exactly what Sells is known to have done or is suspected to have done in other cases.
"She was convicted on the strength of a single question: Who comes into a home, takes a knife from the home, stabs a child, and leaves an adult alive?" Harper defense attorney Ronald Safer argued in a written motion this year.
In the transcripts, Sells - who admits he was on drugs and has jumbled memories - says he had a minor altercation with a woman and her son at a convenience store that day. In anger, he says, he followed them home, and waited until after dark:
"I went in and, and, and I don't know if it was her room, don't know if it was his room, I don't, I just knew I wanted to go in there and, and hurt someone."
Prosecutors are still convinced that Harper, now 36, killed her son in the wake of a bitter custody dispute with her ex-husband. They fought to prevent a jury from seeing Sells' disjointed, sometimes chilling transcripts, arguing it's a false confession designed to delay his execution in Texas. The prosecution notes that Sells states several times that he's unsure he committed the murder.
Sells' "ramblings" aren't "a valid confession" and "are inconsistent with the known, provable facts of the crime scene," special prosecutor Ed Parkinson of the Illinois Appellate Prosecutor's Office wrote in a motion this year.
Hamilton County Circuit Judge Barry Vaughan ruled in March that he would admit the transcripts, despite reservations. Vaughan notes that Sells has claimed to have killed 40 to 70 people, and "it is difficult to determine whether he is recalling this crime or some of the other 40 to 70."
That possibility arises in unsettling ways in Sells' interview with Illinois officials. At one point, he is discussing whether the house he entered had columns outside the door:
"I remember seeing columns . . . at the front. Not one-hundred-percent sure, though . . . I know at some point I killed someone with columns on the front of the door."
Though hesitant to allow what might be "a false confession," Vaughan said he would leave it to a jury to decide how much weight to give the transcripts.
That could be challenging. Sells' account contains many statements that could be interpreted as either major factual inconsistencies or minor memory glitches.
For example, Harper told authorities she'd been out with her son at a McDonald's that evening, not at a convenience store, as Sells states. Sells also claims to have gotten from St. Louis to Lawrenceville by traveling Interstate 55, which is impossible. He describes a house in the middle of the block; Harper's was on a corner.
Harper, who was a 28-year-old Indiana University graduate student in education psychology at the time of her son's killing, was initially convicted in 2002. She was sentenced to 65 years in prison, but the 5th District Court of Appeals ordered a new trial last year, based on a dispute over the role of the special prosecutor in the first trial.
Harper could not be reached for comment and has previously declined interviews on the advice of her attorneys. She remains free on a $750,000 bond pending her second trial, scheduled to start July 10. She is living in DeKalb, Ill., with her current husband, Mark Harper, a Northern Illinois University law stud.
Drifter says he killed Illinois family in 1987
March 3, 2000
So far, man has confessed to 13 slayings
A rail-riding drifter jailed in Del Rio has confessed to the 1987 killing of an Illinois family, including an infant girl born during the attack, officials confirmed Friday.
"It's shocking, but at least this guy is behind bars," said Tom Vinger, a spokesman for the Texas Department of Public Safety.
Tommy Lynn Sells, a 35-year-old carnival worker, confessed Thursday to Illinois State Police and Jefferson County, Ill., sheriff's detectives about the slaying of an Illinois man, his wife, their 3-year-old son, and newborn daughter, Vinger said.
So far, Sells has confessed to 13 killings in seven states and has been charged with murder in two separate attacks on young girls in Del Rio and Kentucky. Investigators from across the nation have interviewed him in the Val Verde County Jail, where he is awaiting trial for the New Year's Eve killing of Kaylene Harris, 13.
Sells is accused of slipping through a window and slashing the throats of Harris and 10-year-old Krystal Surles as the girls slept in a mobile home outside Del Rio. Surles survived the attack and her description of Sells led to his arrest.
In Kentucky, Sells is charged with slashing the throat of a 13-year-old girl and leaving her body near railroad tracks. Sells also has confessed to and is a suspect in killings in California, Arkansas, Arizona and Missouri.
As Sell's jailhouse confessions have tumbled out, high-ranking Texas law officials have cautioned Texas Rangers investigating the case to be wary of another public relations fiasco such as the one caused by Henry Lee Lucas, a drifter who in 1983 falsely confessed to hundreds of murders around the country.
During an exchange at a January meeting of the Public Safety Commission, Chairman James B. Francis Jr. warned Senior Ranger Capt. Bruce Casteel to avoid another "Lucas deal."
"Well, Bruce, let's be very careful. Let's pin him down specifically. Let's don't get carried away and tag him with every murder and unsolved mystery," Francis said.
"We're establishing a time line," Casteel replied.
"You know what I'm talking about. We're not going through a Lucas deal again," Francis said.
Later, Frances added, "It's up to you not to let that happen."
In the next two weeks, Sells will be transported to Arkansas for interviews about two separate killings there in 1981, Vinger said.
Because of the specific details Sells has provided, Texas Rangers are convinced the drifter has told the truth so far, Vinger said.
"He knows things, little details about the crime scene, that only the killer would know," said Vinger.
Sells is a California native who has been on the streets since age 13. He has been described by Texas Rangers as an ex-convict with drinking and drug problems who is prone to extremely violent outbursts. He came to Del Rio about two years ago with a carnival and married a woman there. He took a job selling used cars, authorities have said.
A spiritual awakening prompted Sells to confess to his crimes, Vinger said.
"This guy claims he found religion, and the reason why he started confessing is ... so he can provide closure for as many family members of the victims as he can," said Vinger. "That's what he claims, but who knows what's going on in this guy's head."
Police in Illinois were baffled by the Nov. 1987 slaying of Russell Keith Dardeen, a 29-year-old water treatment worker, his wife Ruby Elaine Dardeen, 31, and their 3-year-old son Peter. After following more than 1,000 leads, they had no strong motive for the attack.
Elaine Dardeen was seven months pregnant at the time. She was found in the couple's mobile home in Ina, Ill., which is 90 miles east of St. Louis, bound, gagged and savagely beaten with a baseball bat. The couple's son also was severely beaten as was the infant daughter born during the attack, police said.
Keith Dardeen's body was found the next night by hunters in a farm field. He had been shot in the head three times and his body had been mutilated with a knife.
"It was a very horrendous crime of a nature that has never been seen in this area before," said Jefferson County Sheriff's Detective John Kemp.
Joeann Dardeen, Keith Dardeen's 62-year-old mother who lives in Mount Carmel, Ill., said Sell's confession may bring an end to the tormenting and fearful years she and her daughter have spent since the slayings.
"We've always had a fear because the police thought it was somebody Keith knew and maybe I knew him. So there was that fear we could be entertaining this person and not know it," she said. "All these years, we know they have questioned many, many suspects but they never came up with anything that looked good."
Joeann Dardeen has kept in contact with the police all this time expressing hope that the mystery would someday be solved.
"It's something you can't describe," she said. "People have said you need to get on with your life and forget it but you can't forget about your only son."
Drifter Eyed in Coast-to-Coast Killings
Police: He Claims Credit for Eight Deaths
Jan. 7, 2000
DEL RIO, Texas (APBnews.com) -- A 35-year-old drifter charged with the murder of two teenage girls told investigators he assaulted and killed six other people in four states during a crime spree lasting a quarter-century, authorities said today.
While being interviewed by detectives about the death of 13-year-old Kaylene Harris here on New Year's Eve, Tommy Lynn Sells recounted a 22-year criminal history that started with petty theft as a young teenager and escalated very quickly to murder, authorities said.
Sells provided investigators with so much information about a 1999 Kentucky murder that Lexington police went to Texas last weekend to charge him with the abduction, rape and murder of 13-year-old Haley McHone. He is being held in Del Rio on $800,000 bail pending a February arraignment on capital murder and attempted-murder charges, authorities said.
Death toll expected to rise
Investigators said they would not be surprised if the number of deaths attributed to Sells rises. "There was a gob of stuff he was not able to recall," said Sgt. John Allen, a homicide detective with the Texas Department of Public Safety. "He's legitimate. He's honest. He wanted to set things straight. He may recall more as time goes on."
Sells does not yet have a court-appointed attorney and has told authorities repeatedly he does not want one, said Tom Lee, district attorney for the 63rd Judicial District.
Allen, a lead investigator in the Del Rio case, told APBnews.com that Sells provided such graphic details about the cases in which he was charged that there was no reason not to believe he committed the other crimes he told them about.
"Lexington police told me, 'He knows too much about the murder not to have committed it,'" said Allen.
Killed at random
The range of Sells' alleged crimes defies simple analysis, investigators said. His victims spanned generational, gender and geographic lines; his weapons were guns, knives or his hands. He attacked young girls whom he did not know as they slept in their beds and threw a fellow drifter off a train during an argument over money, they said.
"There's no clear pattern," said Allen. "It's not the same gender or age. Some were young girls and others men -- transients with whom he would take an altercation to its fullest."
Sells allegedly broke into the home of Harris' family Dec. 31 and attacked the 13-year-old girl and her friend, 10-year-old Krystal Surles, in their beds. Surles was stabbed, but survived and was able to help investigators with a description of her attacker, police said.
'Where did I go wrong?'
After his arrest Sunday, Sells confessed to slayings in Los Angeles and San Bernadino, Calif., and two in Arkansas, Allen said, as well as a string of assaults and aggravated robberies in North Carolina and Florida.
Asked how many people Sells may have assaulted, Allen said, "We're trying to verify the homicides. We're not even looking at the assaults yet. Who knows? A lot."
It is unclear what prompted Sells' jail-house confession. "Maybe he was tired with living with it. He knew he would keep on killing unless he was stopped," said Allen. "At one point he asked me, 'Where do you think I went wrong?' I wanted to say, 'The day you were born,' but I didn't."
Eerie resemblance to another drifter
Sells bears a chilling resemblance to another rail-riding murder suspect, Angel Maturino Resendiz, the Mexican drifter linked to nine killings in three states, who surrendered to authorities last July at the Texas border.
Like Resendiz, Sells roamed the country aboard freight trains apparently choosing many victims at random -- one of them, McHone, was found near a rail line in Lexington about 200 yards from where Christopher Maier, one of Resendiz's alleged victims, was beaten to death in 1997.
Allen said Sells was born in Oakland, Calif., but his family moved to St. Louis when he was a young boy. After running away from home at 13, he lived on the streets, supporting himself with odd jobs and carnival work.
"It was the carnival that brought him to this area," said Allen. "He met a girl and married her 14 months ago."
No prior murder convictions
Sells has no prior murder convictions, but has served time in West Virginia and Wyoming for various crimes including auto theft, drug possession and assault, authorities said.
A spokeswoman for the North Carolina Attorney General's Office was not aware of Sells or any particular cases in that state that he may have been involved in, but said that many cases would be referred to the local jurisdictions where the crimes took place and would not necessarily be pursued by state police.
A Los Angeles police spokesman said he had not heard of Sells either. "We've had no notification yet. It's too early," said Officer Jason Lee.
Drifter Accused of Killing Girls in Two States
Rail-Riding Transient Allegedly Slashed Third Victim
Jan. 4, 2000
LEXINGTON, Ky. (AP) -- A rail-riding transient has been charged with murdering teenage girls in two states and wounding a third, authorities said.
Tommy Lynn Sells, 35, of Del Rio, Texas, was arrested Sunday in the stabbing death of Kaylene Harris, 13, and slashing of 10-year-old Krystal Surles.
Both girls were sleeping at the home of Kaylene's mother near Del Rio on Friday when Sells allegedly broke in and attacked them with a knife.
Krystal, who was in stable condition after her vocal cords were severed in the attack, helped Val Verde County authorities track down Sells by writing down a description of the attacker, authorities said.
Allegedly confessed to a third attack
Following Sells' arrest, authorities said, he confessed to the May slaying of Haley McHone, 13, of Lexington. He was charged Monday with murder, rape and kidnapping in her death.
The girl's decomposed body was found in bushes by railroad tracks near her house in May. Authorities have not said how she was killed.
The site was just a couple of hundred yards from where University of Kentucky student Christopher Maier was beaten to death in August 1997. Authorities in June linked Maier's killing to Angel Maturino Resendiz, a rail-riding drifter whom authorities believe is to blame for a string of murders near railroad tracks in several states, including Texas.
Following Resendiz's arrest, police said that they did not believe he was responsible for Haley McHone's death.
Trial in two states likely
Lexington police Sgt. Mark Barnard described Sells as a transient who rode the rails and passed through Kentucky in May. Police said he has held several odd jobs, including a stint in a circus.
The Lexington Herald-Leader reported Tuesday that law-enforcement officials are investigating whether Sells may be responsible for other crimes in Kentucky and at least five other states.
He would face trial in Texas on the capital murder and attempted murder charges before being tried in Kentucky. No hearing had been set.
Tommy Lynn Sells
By David Krajicek
The last murder
At 4 a.m. on December 31, 1999, 20 hours before the turn of the millennium, a car rolled to a muted stop in the Guajia Bay subdivision, west of Del Rio, Texas.
A bearded man with a mullet haircut got out and padded quietly toward a double-wide trailer, home of Terry and Crystal Harris and their kids. He whispered reassurance to a caged pet Rottweiler in the backyard and approached the pen to allow the animal a whiff of his scent.
The man used the blade he was carrying, a 12-inch boning knife, to try to trip the lock on the back door. That failed, and so did an attempt to enter the home through a rear window that held an air conditioner.
He walked around to an open window on the front of the house. He tipped over a metal tub to use as a step, removed a screen and hoisted himself up and in.
The man found himself in the bedroom of Justin Harris, 14, who was blind. The boy was roused awake, but he thought the noise was his siblings horsing around.
Justin called out, "Will y'all stop coming into my room!"
The man moved out of Justin's room to the next bedroom. He opened the door and flicked a flame to his cigarette lighter. There slept a Harris family friend, Marque Surles, 7. In the master bedroom, he flicked his lighter again and found Crystal Harris asleep with her daughter Lori, 12.
Finally, in the fourth bedroom he found what he was looking for.
In the bottom rack of a bunk bed lay Kaylene "Katy" Harris, 13.
The man lay down beside the girl and nudged her awake.
She looked at him sleepily and said, "What are you doing here?"
The man held a hand over her mouth and menaced Katy with the knife.
He drew the blade down her body and deftly sliced off her shorts, panties and bra, as if he'd done that sort of thing before.
When the man began fondling her, Katy wiggled free, stood up and screamed, "Go get mama!"
Only then did the intruder realize that a second girl, Krystal Surles, 10 years old and 80 pounds, was asleep on the top bunk.
The man poked his knife at Katy and turned on the bedroom light. Seeing blood, the girl said, "You cut me!"
The intruder moved in behind Katy.
"He had his hand over her mouth," Krystal Surles would later say. "She was struggling. She told me with her eyes to stay there and not move, and so I didn't."
As Krystal watched, the man dragged the blade of his knife across Katy's throat once, and then repeated the motion a second time.
"She just fell," said Krystal. "And then she started making really bad noises, like she was gagging for air but couldn't get any because of the blood."
The man continued his knife work after Katy collapsed. A coroner would catalogue 16 stab wounds, three of which went all the way through her body, in addition to the two gashes to the throat.
The intruder moved toward Krystal Surles.
"I told him, 'I'll be quiet. I promise. I won't say anything. It's Katy making the noise,'" she would later say.
But the intruder showed no mercy.
"He reached over and cut my throat," she said. "I just lay there and pretended I was dead. If he knew I was alive, he would come back and kill me for sure."
The assailant switched off the light and walked out, leaving through the front door. After a minute, Krystal heard a car start and drive off. She put a hand to her throat and ran outdoors. Assuming that everyone in the house had been killed, she made her way to a neighbor's house a quarter-mile away.
There, retiree Herb Betz was up early to watch TV coverage of the arrival of the millennium in Australia . He heard a door knock and peered through the peephole. There stood Krystal Surles in a T-shirt, boxer shorts and socks. She was awash in blood.
The child was unable to speak. The knife had severed her windpipe and grazed the sheathing of her carotid artery. She had come within a millimeter of Katy Harris' fate.
"Her little eyes were saying to me, 'Help me,'" Betz told Texas journalist John MacCormack.
Betz dialed 911. As she lay waiting for help, Krystal asked for writing instruments, and she penned three brief notes:
"The Harrises are hurt."
"Tell them to hurry."
"Will I live?"
Betz said, "I kissed her on the forehead and told her several times she'd be all right. I didn't believe it. I thought she'd die on my kitchen floor."
Medical rescuers found the girl in shock, her body convulsing.
She was raced to a Del Rio hospital, and then flown by helicopter to University Hospital in San Antonio , where surgeons worked for hours to repair the damage done by the five-inch cut across her throat.
Back at the Guajia Bay subdivision, rescuers found Katy Harris dead, although the others in the house were unharmed.
Krystal Surles awoke groggy on New Year's Day, her throat heavily bandaged. Texas rangers and county sheriff's investigators were anxious to debrief the girl about her attacker, but they were careful to allow her time to recover.
But soon after regaining consciousness, Krystal was ready to get to work. She used gestures to demand a pen and paper and began writing descriptions of her assailant.
Authorities called in Shirley Timmons, a forensic artist, from her home in Midland to work with Krystal from her San Antonio hospital bed.
The first sketch showed a dark-eyed, round-faced man with long brown hair and a full beard. The image resembled a swarthy Chuck Norris.
Cops quickly distributed the description and image, and they pressed the Harris family to mull over friends and acquaintances for a match.
Nothing was missing from the home. Law enforcers assumed the murder was motivated by sexual deviance, not robbery. And they suspected the killer was acquainted with the Harrises before climbing in the window-and that Katy Harris had been his intended target.
The two Surles girls were staying with the Harrises while her mother, Pam, was moving from Kansas to Del Rio over the holiday. The families had been friends in Kansas before the Harrises moved to Texas in 1995, and Pam Surles and her daughters were now joining them there.
A group left Del Rio at 6 p.m. December 30 for the 13-hour drive north to collect Surles' belongings. Those on the trip included Terry Harris, adoptive father of the murder victim, Pam Surles and her boyfriend, Doug Luker.
They turned around and rushed back to Texas when they were informed of the murder and assault.
When Luker heard the description and saw the sketch, it reminded him of a man the moving group had seen at a Del Rio gas station just before they left for Kansas .
He remembered the man's name as Tom or Tommy. He seemed to be a friend of Terry Harris, Luker said, and he worked as a salesman at Amigo Auto Sales.
Luker shared his recollections with Texas Ranger John Allen, who tracked down the owner of the car lot by phone. The man was uncooperative with Allen, but he quickly reconsidered.
He phoned the Val Verde County Sheriff's Office and gave a friend there the name of the employee. Rangers searched state crime files and came up with a picture of the man-beardless, but it was the best they could do.
They went to Krystal Surles' hospital room and showed her a photo array of six men. She studied the pictures purposefully, and then pointed at one as the intruder.
It was the used-car salesman from Del Rio. His name was Tommy Lynn Sells.
Investigators prepared an arrest warrant and paid a visit early on January 2 to the trailer Sells shared with his wife, Jessica Levrie, and her four children.
He went along without rancor. He didn't ask why he was being taken in, and investigators didn't offer to tell him.
But during the ride to the sheriff's office, Sells turned to Val Verde County Sheriff's Lt. Larry Pope and said, "Well, I guess we've got a lot to talk about."
'He loved to kill'
Over the next few months, Sells talked and talked about a singular life of killing.
The lifelong transient admitted the murder of Katy Harris and the throat-slashing of her friend. He said he killed an entire family in Illinois, a mother and daughter in Missouri, a teenage girl in Lexington, Ky., a drifter in Arizona, a child in San Antonio. And there were many more-a string of perhaps 20 murders across America that spanned three decades, by Sells' account.
Sells began using the nickname "Coast to Coast," the geographic spread of his carnage.
"He wants to clean the slate and get everything behind him," Ranger Allen told reporters. "He's told us he wants closure for himself and for the families of the victims he's killed. Closure was his word."
Sells' court-appointed attorney, Victor Garcia, said he advised his client to stop talking.
"I said, 'Well, I understand you've already confessed to everything but the kitchen sink,' and he said, 'Yeah. I want this over,'" Garcia told journalist MacCormack. "I suggested to him that he not talk anymore, and he said, 'I'm not going to stop. I don't need a lawyer.'"
The country has had more prolific--perhaps even more depraved--serial killers.
But several features of his work make Tommy Lynn Sells standout in the pantheon of American murderers.
Sells, nearly illiterate with an eighth-grade education, spent his life as a boozy, doped-up drifter. Yet he managed to fly beneath the radar of law enforcement for 20 years-particularly unusual in that most of his victims were not hobos and hookers, who typically occupy the lowest-priority slot at the back of the homicide-investigation file drawer.
He spent time in prisons for a number of other offenses, and that crime pedigree was readily available to law enforcers. But he was never even a suspect in a murder until he failed in his attempt to kill Krystal Surles.
His pattern, to the extent that he had one, was simple: kill and move on.
Bud Cooper, a Missouri police investigator, explained to a San Antonio reporter why Sells escaped detection: "If you or I drove across the United States , we'd be fairly easy to follow. We use credit cards and telephones. But this guy takes trains, uses no credit cards, doesn't use checks. It's kind of like chasing a ghost."
The American fascination with crimes and criminals often centers on the workings of the criminal mind. But Sells exhibited none of the evil genius of a Ted Bundy or a Charles Manson.
"He wasn't some strange, far-out-type person," said Sgt. Terry Ward of the Pulaski County Sheriff's Department in Little Rock , Ark. , told the Arkansas Democrat . "He was just a normal person who loved to kill. If you made him mad, he'd kill."
Motivation has been a muddy issue as investigators have reconstructed Sells' life of crime. Some investigators termed him an "opportunist" criminal who would strike when a likely victim appeared.
True-crime author Diane Fanning, who wrote about Sells in "Through the Window," claimed that he killed "with no apparent motive and no common pattern."
Yet the evidence shows that Sells was a sexual predator. Many of his crimes included rape and sexual mutilation, and most of his murders began as deviant assaults, including the murder of Katy Harris.
It is true that Sells killed with many implements, including knives, guns, a baseball bat and various garrotes. And it may be true that some of his crimes were spontaneous rather than calculated.
But his sexual predatory urges became more acute over time, as adolescent girls and petite women-often lonely single mothers-became his victims of choice. His body of criminal work makes one pattern, one motive all too clear: Tommy Lynn Sells was a sexual psychopath who stalked, raped and murdered women and girls.
A throwaway kid
Sells was born with a twin sister, Tammy Jean, in Oakland on June 28, 1964.
His mother, Nina, had two sons before the twins were born, and three more boys would soon follow.
The children had a non-traditional upbringing, including fundamental questions about parentage. Officially, an insurance agent named William Sells was their father.
But author Fanning said the biological father was Joe Lovins, a used-car salesman. Fanning wrote that Lovins had bailed Williams Sells out of a financial hole, and Sells agreed to claim the children as his own in an insurance scam. Sells' job provided health insurance benefit to the children.
(Much later in life, Tommy Sells would credit Joe Lovins for the fatherly adage that helped him kill so many for so long: "Dead men tell no tales.")
When twins Tommy and Tammy were 18 months old, Nina Sells moved her troupe to St. Louis , where she had kin.
There Tammy contracted meningitis and died. Tommy exhibited the same high fever as his sister, but he survived.
Nina Sells sent her son away to live with her aunt, Bonnie Walpole, from ages 2 to 5. The woman told Fanning that the mother never visited, so she inquired about adopting Tommy. The mother was furious. She took possession of the boy and refused to allow him to visit Walpole .
Tommy Sells became a chronic truant at the extraordinarily early age of 7-an indication of his mother's indifference.
She defended herself to Fanning by saying, "He was the kind of child that, whatever you wanted him to do, he was going to make sure he did not do it. Going to school was one of those things."
At age 8, young Sells was allowed to spend time with a man from a nearby town who had befriended him. He would take the boy on day trips, and the man would lavish gifts and cash on the child. Sells began to sleep at his home with increasing frequency.
The man would later be identified as a pedophile who molested boys, including Sells, for years before he was caught, according to Fanning.
Every aspect of Sells' upbringing seemed tainted by his mother's neglect. Harbingers of behavioral pathologies appeared frequently.
He was allowed to sample alcohol with his grandpa at age 7. He began smoking ditch-weed marijuana at age 10. He crawled into bed naked with his grandma at age 13, and he would later undergo mental examination when he tried to rape his own mother. By age 14 he was off on his own, a boy posing as a man, hopping trains, stealing, and doing what he had to do to survive.
A life of crime
From 1978 to 1999, Sells crisscrossed the country by hopping freights, hitching rides or stealing cars. He spent time in half the states in the union, begging or working as a carny, barber, mechanic and laborer.
A precise accounting of his felonies is impossible; Sells didn't keep a crime diary.
But a murder he committed in July 1985 serves as a prototype.
He was working with a carnival that had set up in Forsyth , Mo. , a town of 1,000 on Table Rock Lake near Branson, then a burgeoning country music center.
Among the visitors to the fair was Ena Cordt, 35, a petite divorcee who scraped by working at a car wash. She was treating her 4-year-old son, Rory, to a night out.
By Sells' account, he met Cordt at the fair, and she invited him back to her home late that night. The authorities found the bludgeoned bodies of the woman and her child three days later.
The way Sells tells the story, he had consensual sex with Cordt, then found her stealing from his backpack. He picked up her son's wooden baseball bat and beat her to death, then killed the child, a potential witness.
There is no telling what really happened. Perhaps he ogled her at the fair, stalked her home, raped and murdered her.
Dead men tell no tales, as Lovins said. Nor do women and innocent children.
After his arrest in Texas , Rangers and FBI agents led Sells on a series of out-of-state field trips to try to confirm his recollections of homicides, some of which were vague, owing perhaps to the passage of time and a haze of substance abuse.
But the rangers used caution in accepting Sells' accounts.
The agency was stung with embarrassment over its handling of serial confessor Henry Lee Lucas. Arrested in 1983, he claimed to have committed hundreds of homicides, and detectives from across the country rushed to Texas in a case-clearing frenzy.
In 1995, the Dallas Times-Herald charged that the Lucas confessions amounted to a hoax abetted by overzealous law enforcers.
With Sells, the rangers were more persnickety about confirming his claims.
For example, Sells told author Fanning that he killed a man with a pistol in Mississippi during a home break-in just weeks after his 16 th birthday, and he claimed an ice-pick murder in Los Angeles the following year. Police discount those claims as unconfirmed.
In March 2000, Sells took a homicide-investigation field trip to Little Rock , Ark. He had lived there in the early 1980s, and he claimed he raped and murdered a woman near Little Rock and pitched her body into a bauxite mine pit. He also claimed he shot a man during a burglary there.
He led police to the mine pit and to the burgled house. It turned out his shot had missed the man, who was alive and well. The mine-pit murder remains unresolved.
Evidence indicates that Sells went on a murderous rampage in the late 1980s. He claims to have killed a dozen people in seven states from 1987 to 1989, literally coast to coast.
The investigative technique for fleshing out details of these cases would go something like this: Sells would say he killed a family in the Midwest or a woman hitchhiking in the southwestern desert on an approximate date, and detectives would set out to find matches. They would then press Sells for details of the crimes, the victims and the settings for comparison to cold cases.
In the fall of 1987, Stephanie Stroh, a 20-year-old free spirit, was hitchhiking across America back home to San Francisco after a year-long trek to Europe and Asia . On October 15, she was standing beside a road with her thumb out in Winnemucca , Nev. , when a roofer driving a stolen truck pulled over to offer a ride.
The roofer, who had drifted into town that summer, was Tommy Sells. By his account, he drove the young woman toward Reno on I-80, pulled off at some point, choked her to death, then dropped her body down a hot spring. Two weeks later, Sells failed to show up at work. He was on the road again. Despite a massive search, Stroh's body was never found.
Some law enforcers believe Sells' account. Others doubt he killed the woman.
But everyone agrees he was responsible for one particularly depraved multiple homicide in Illinois in the fall of 1987.
A few days before Thanksgiving, hunters walking a field near Ina , Ill. (pop. 500), 80 miles east of St. Louis , found the body of Keith Dardeen. He had been shot in the head, and his genitals were mutilated.
In the trailer where he lived, police found tucked in bed the bodies of Dardeen's wife, Elaine and their son, Pete, 3. Each had been bludgeoned to death, and Elaine had been raped and sexually assaulted with the baseball bat the killer used as a murder weapon.
Also in the bed authorities found the body of a newborn daughter, born prematurely during or after the beating administered to Elaine. The infant, too, was beaten to death. The case had been unsolved for 12 years, until the arrest of Sells, who claimed responsibility.
The Ina murders are examples of the frustrations law enforcers and survivors have had in debriefing Sells. They are certain that he killed the Dardeen family, but they are not certain of why-or what touched off the violence.
Sells claims he met Keith Dardeen at a truck stop, and the man invited him home. He also claims Dardeen made sexual advances. Relatives say that it is unlikely that Dardeen, who was fearful of crime to the point of paranoia, would have invited a stranger home, and they say the sex come-on allegation is absurd.
Criminals who commit heinous acts frequently concoct circumstances to explain or even mitigate their own blame, of course. How else can someone with even a shadow of conscience rationalize the pummeling of a newborn child?
Perhaps even Sells doesn't know the truth of his carnage. By 1987 he was a heavy drinker and drug-user. He preferred heroin but settled for just about any drug he could ingest or inhale-crank, coke, acid, meth.
He would work a few days or steal something of value, then use his earnings to buy drugs and get high. He was often in a haze.
Sells told investigators that his bloody binge continued in 1988 and '89. The list is numbing. He said his victims included an adolescent girl in New Hampshire; a woman and her 3-year-old son killed at a bridge overlook near Twin Falls, ID; a transient named Kent Lauten, 51, knifed to death in a fight over a marijuana debt in a hobo camp near Tucson; a prostitute in Truckee, Calif., and a young woman hitchhiker in Oregon.
By Christmas 1989, Tommy Sells was a doped-out shell. He stumbled into Rawlings , Wyo. , and on January 12, 1990, crossed paths with a young couple who needed tires for their truck. Sells accommodated them by stealing a truck, removing the tires and selling them at a deep discount.
He scored with his profit, then hid out near railroad tracks, planning to jump a freight. A cop happened to see his wobbly run toward a train and arrested Sells for public intoxication. He was carrying incidental items from the stolen truck, so cops brought theft charges that led to a 16-month prison term.
But Sells had a difficult time going cold turkey off narcotics while in jail. He was having anxiety attacks and hallucinations. (Among other things, he was carrying on conversations with his awful collection of splotchy, self-inflicted tattoos, according to author Fanning.)
A jail shrink ordered mental tests, and Sells was diagnosed with a psychiatry textbook's worth of personality disorders, addictions, depressions and psychoses. Medications stabilized Sells, and he did his time without incident.
A free man a year after he was arrested, Sells hit the road again, returning to his bloody work.
In September 1991, Sells told authorities, he killed Margaret McClain and her daughter, Pamela, in Charleston , W. Va. Eight months later in the same city, he attacked a 20-year-old woman who took him home and offered him bags of food and clothing after she found Sells on a street corner begging. He raped and stabbed the woman, but she managed to wrest the knife from Sells and slash him repeatedly, inflicting 23 wounds on her assailant.
Sells picked up a piano stool and beat the woman into submission, leaving her for dead. But she survived.
The woman helped identify Sells, who had become a familiar face around downtown Charleston , often holding a sign that read, "Hungry. Will Work for Food."
Sells pleaded guilty to malicious wounding, and a rape charge was dropped. He was sentenced in June 1993 to two to 10 years in West Virginia state prison. Two things happened during his four years behind bars: He got married, and he was diagnosed as bipolar.
Released in May 1997, Sells moved to Tennessee with his new bride, Nora Price. But the marriage was not blissful. Sells abandoned the woman again and again, as the peripatetic murderer set off on more cross-country travels. For example, he has claimed blame for the October 1997 strangulation death of Stephanie Mahaney, 13, whose remains were found in a pond west of Springfield , Mo.
In the latter months of 1997, Sells hooked up with the Heart of America carnival. He operated the Ferris wheel and drove the truck that hauled it from town to town.
In late February 1998, the carnival put down stakes for an eight-day stop in Del Rio , Texas , a border town of 35,000 on the Rio Grande just below the Amistad Reservoir dam. There he met a lonely local woman, Jessica Levrie, 28, the mother of four young children.
She was enraptured. Sells went away with the carnival, but she lured him back just days later. He moved into her trailer on March 31, just a few days before his wife, Nora, was giving birth to his son in Jonesboro , Ark. (She gave the child up for adoption.)
Sells took a job maintaining and selling used cars at Amigo Auto Sales in Del Rio . He and Levrie married in October 1998, although the license was invalid because he had never bothered to divorce Nora. No matter. Sells cut his beard, trimmed his mullet and wore a rented tux for the big event in Del Rio .
She gave him a used pickup truck as a wedding gift. He gave her a lifetime of nightmares.
Into Del Rio
Beyond the polygamy, their union was a mismatch in many ways. Levrie was a born-again Christian, and Sells was indifferent to religion. The woman was sincere, and Sells was a con man. Sells posed as an abiding husband, but he secretly caroused at night, maintaining his well-worn habit of drug and alcohol abuse.
As always, Sells would disappear periodically. His road trips came frequently in 1999. He would lie to Levrie that he had business out of town or that he had to see a relative. In fact, Tommy Sells made Del Rio his home base for a furious endgame series of murders in 1999.
On April 4, he apparently broke into the trailer home of a 32-year-old woman in Gibson County , Tenn. , 75 miles northeast of Memphis . He raped and stabbed the woman to death, then stabbed to death her 8-year-old daughter.
He hightailed back to Texas , landing in San Antonio two weeks later with another carnival troupe for the city's huge Fiesta. At 10 p.m. on April 18, Mary Bea Perez, 9, disappeared from her family's table at the El Mercado music fest downtown. Ten days later, the girl's body turned up in a San Antonio creek. She had been molested and slain.
The case was unsolved until Sells was arrested and accepted responsibility.
Sells hurried out of San Antonio and headed back east to Lexington , Ky. , where he bedded down at a homeless shelter and worked as a day laborer.
On May 13, he saw Haley McHone, 13, enjoying a solitary springtime ride on a swing in a Lexington Park . He accosted her and forced her to a wooded section, where he stripped, raped and choked the girl to death. He rode off on the girl's bicycle and sold it for $20 in a housing project, then used the proceeds to get falling-down drunk.
He was arrested late that night for public intoxication. He was released from jail the next morning, then scooted west back to Del Rio -gone long before the girl's body turned up.
There may have been other murder excursions before the turn of the millennium. Sells told investigators he traveled to Kingfisher, Okla. , in July, where he raped and shot Bobby Lynn Wofford, 14.
In Del Rio Sells and Levrie began attending Grace Community Church at the invitation of Sells' boss at Amigo Auto Sales.
At the church Sells met Terry and Crystal Harris and their children, including Katy, a girl of the proper age for the sexual predator.
Sells insinuated himself into their lives. He visited their double-wide several times, pretending to seek Terry Harris' counseling about his marital difficulties. In fact, he was ogling Katy, her 12-year-old sister, Lori, and their slender mother, Crystal.
The opportunity for the crime opened up when Sells happened to cross paths with Terry Harris on December 31 as he gassed up his truck for his trip to Kansas .
Harris was a rugged man-a former cop and nightclub bouncer. Sells' MO was to attack women and children, with only a few exceptions. He likely would not have gone to the Harris home that night had he not known that Terry Harris would be away.
A brief trial
Sells faced trial for murder in Del Rio in September 2000. He wore a blue suit that covered his tattoos. His hair was closely trimmed, and he wore studious spectacles.
Testimony revealed that Katy Harris may not have been his first choice for sexual deviance on the night of her murder. He spent that evening at Larry's Lakeside Tavern. The first witness, bartender Noell Houchin, said Sells harassed her all night long.
"He was obsessed with having sex with me. That's all we talked about all night long," she testified.
At the 2 a.m. closing, Sells was shooed away by another man, a customer looking out for Houchin.
Crystal Harris took the stand to testify that her family met Sells in church, then bought a used truck from him because they felt sorry for him.
But the star witness was Krystal Surles, the child whose throat he slashed. As the trial began, Sells pleaded guilty to that assault-a well-considered legal maneuver.
"He's attempting to save his life," his lawyer, Victor Garcia, told reporters. "He's trying to show the jury that he is accepting responsibility."
But the trial belonged to young Krystal, who mounted the witness stand with a jagged pink scar across her neck. She bravely recounted the murder of her friend and the slashing of her own throat. She looked Sells in the eye as she testified, and she calmly pointed him out as her assailant.
The girl's mother, Pam Surles, told reporters, "She wants him to die. That's exactly what she said."
Sells did not testify, but he did appear in a videotaped walk-through of the crime scene that was played for jurors. During the tour, he told investigators that he had "nothing intentional on my mind" when he went to the Harris home at 4 a.m.
Attorney Garcia allowed that the murder was "a hellish, brutal crime," but he argued it was not capital murder, a verdict required for condemnation.
The jury disagreed. It took just an hour to convict on that charge after a brief, three-day trial. The jury then voted for execution.
Sells joined more than 450 others on Death Row in Livingston , Texas , whose execution total of nearly 300 since 1982 leads the nation. No execution date for Sells has been set. The average stay on Texas Death Row is 10 years, at a cost to taxpayers of $55 per day, state officials said.
When his time comes, Sells will be given a dose of three drugs (cost: $86)--a deadly dose of the sedative sodium thiopental, a form of bromide muscle relaxant to collapse his lungs, and potassium chloride to stop his heart beat.
Katy Harris' adoptive father says he looks forward to that day. Terry Harris says the family has saved a bottle of champagne they had intended to use to toast the new millennium. It will be uncorked the minute Tommy Lynn Sells is executed, Harris says.
In 2001, the Harris family sat for an interview with the Kansas City Star. They had moved back to Kansas , unable to live in the place where Katy was murdered.
"It took just 10 minutes for Sells to uproot our family," Harris told the paper. "He stole our daughter's accomplishments, every birthday, every holiday...For a whole year, everything snowballed downhill. He stole our lifestyle. We may have to file bankruptcy. I'm not allowed to work - I have too many anger issues. The drugs we're on for depression are really expensive. I don't feel like a man. Forget about sex. There's no way you can plan for something like this."
He continued, "It eats me up that I tried to help Tommy. I talked with him. He was a guy down on his luck that I tried to help. He repaid me by killing my daughter."
While the survivors of his murders try to cope, Sells grouses about his treatment in letters posted on the Internet. He complains about denial of "basic hygiene," a paucity of food and a lack of sleep.
Like a number of other condemned inmates, Sells has become a Death Row Picasso. His kindergarten-quality art shows up on the Internet, including manacled praying hands and a Texas flag with the message, "Gov. George Bush Killed 135, Still Going."
Sells wrote a letter to author Fanning that was included at the end of her book "Through the Window."
The content of the letter was self-pitying, self-serving and anti-Semitic. It showed precious little reflection and managed to blame everyone but himself for his predicament-including, inexplicably, Jews.
He waxed sanctimonious about the value of human life, particularly his own. Among other things, he expressed outrage that the prosecutor in the Katy Harris murder had had the temerity to show jurors an autopsy picture of the girl. His take on this issue perhaps best exemplifies his disconnection from the reality of what he has done.
Tommy Sells wrote, "That is what got me the guilty verdict, not evidence. I still do not get it to this day. That picture had nothing to do with what happened at the Harris home."
Sells had a falling out with the Texas rangers, and he stopped cooperating.
As he put it in a letter posted on the Internet, "I'm taking some time off from working so close with the Rangers. As a matter of fact, I've stopped, for one or two reasons. Too much too fast. They are getting on my nerves as I was getting on theirs. Them Rangers want to rip my guts out because I've wanted a break."
Investigators said Sells was using his cooperation shrewdly, parsing out details that might lead to additional field trips. He also knows that should he start talking again down the line, it might be reason enough to prompt delays of his execution.
Still under scrutiny
An accurate accounting of the murders committed by Tommy Lynn Sells may never be possible. Although he is unlikely to face trial again, his name continues to crop up in court documents across the country.
In 2003 Sells pleaded guilty to capital murder for slaying 9-year-old Mary Bea Perez at the San Antonio Fiesta. In exchange for the plea, prosecutors waived the death penalty, and Sells automatically received a sentence of life in prison.
Also that year he was indicated in Missouri in the 1997 strangulation death of Stephanie Mahaney, 13, near Springfield .
In April 2004, police in Lockport , N.Y. , officially notified survivors of a murder victim there that Sells likely was responsible.
Suzanne Korcz, 28, disappeared in May 1987 after she stormed out of a Lockport bar following a quarrel with her boyfriend. Her skeletal remains were found eight years later at the base of an escarpment in Lockport , near Niagara Falls .
The details of the homicide are unclear, but Sells confessed in 2002 that he was responsible for the long-unsolved murder. Authorities said he gave details that lead them to believe he was telling the truth, including a description of the victim.
He is being scrutinized in the murders of a woman and her daughter in St. Louis is 1983 and the rape and gunshot slayings of a farm wife and daughter in Portageville , Mo. , in 1998.
And Sells is at the center of a wrongful-conviction allegation in Illinois .
Julie Rea-Harper was sentenced to 65 years in prison in 2002 following conviction by a jury for the 1997 stabbing death of her son, Joel Kirkpatrick, 10.
Prosecutors alleged that Rea-Harper killed the boy in her home in Lawrenceville, in downstate Illinois , after she lost custody of him to his father as a result of a contentious divorce.
In May 2004, the Center on Wrongful Convictions at Northwestern University Law School took up the cause, saying courts should grant a new trial because Sells wrote two coy letters indicating he may know something about the case. Others have joined in the call for a new trial for the woman, who has continued to proclaim her innocence.
Young Kirkpatrick was killed just two days before Stephanie Mahaney, and the murder scenes were less than 100 miles apart.
The issue is whether Sells can be trusted. If his victims were able, they might advise: Don't bet your life on it.
Sells v. State, 121 S.W.3d 748 (Tex. Crim. App. 2003). (Direct Appeal)
Defendant was convicted in the 63rd District Court, Val Verde County, George M. Thurmond, J., of capital murder and was sentenced to death. On direct appeal, the Court of Criminal Appeals, Keller, P.J., held, as a matter of first impression, that: (1) statute that precludes admissibility of electronically recorded oral statement if copy of that recording is not provided to defense counsel at least 20 days prior to recording, applies to pretrial hearings; (2) evidence was legally and factually sufficient to support finding that defendant murdered victim while in course of committing burglary with the intent to commit aggravated sexual assault, as required to support conviction; and (3) trial court did not abuse its discretion when it refused to allow defendant to ask during voir dire questions relating to law of parole. Affirmed. Johnson, J., concurred and dissented and filed a separate opinion. Meyers, J., concurred in result. Price, J., concurred in result.
KELLER, P.J., delivered the opinion of the Court in which WOMACK, KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ., joined.
In September 2000, a jury convicted appellant of capital murder. FN1 Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, §§ 2(b) and 2(e), the trial judge sentenced appellant to death.FN2 Direct appeal to this Court is automatic.FN3 Appellant raises thirty-six points of error. We will affirm.
FN1. Tex. Penal Code Ann. § 19.03(a). FN2. Art. 37.071, § 2(g). Unless otherwise indicated all future references to Articles refer to the Code of Criminal Procedure. FN3. Art. 37.071, § 2(h).
I. SUFFICIENCY OF THE EVIDENCE
On the evening of December 30, 1999, appellant was at a convenience store when Terry Harris drove up and spoke to him. Harris said that, when he returned from Kansas, he would repay the $5,000 drug debt he owed appellant. Later that evening, appellant went to a bar where he stayed until closing time. A waitress there, Noell Houchin, confirmed that appellant arrived around 10:00 p.m. and stayed for four hours. During that time he drank four beers and seemed obsessed with having sex with her. Houchin told the jury that appellant repeatedly asked to have sex with her, even offering to pay for it, despite her refusing repeatedly and telling him that she had a boyfriend. Houchin also testified that appellant did not seem intoxicated when he left around 2:15 a.m.
After leaving the bar, appellant went to a flea market and drank more beer. After a while, appellant started thinking that Harris “had been fucking with” him about paying the debt, and he decided “to do something about it.” Appellant thereafter retrieved more beer and a knife from his house and drove over to Harris's house. Appellant parked down the street from Harris's home, which was located in a somewhat remote area. When appellant entered the backyard, the dog, who was in the front yard, began to bark. Appellant walked to the front yard and petted the dog. Because appellant had previously befriended the Harris's dog, the dog stopped barking. After trying unsuccessfully to break in through the back door and a locked window, appellant found an open window and entered the residence. After looking in various rooms, appellant went into a room where two young girls were sleeping on bunk beds. Appellant laid on the bottom bunk with thirteen-year-old Kaylene Harris and cut off her panties with his knife. After appellant inserted his finger into Kaylene's vagina, she jumped out of bed. Appellant, however, blocked the door and stabbed Kaylene as she tried to escape. Appellant then cut Kaylene's throat several more times and went over to her eleven-year-old companion, Krystal Surles, who was still on the top bunk, and cut her throat. Appellant left the trailer, wiped his fingerprints off a doorknob, and took two window screens with him because they had his fingerprints on them. Appellant disposed of the screens and his knife on the way to his home.
Krystal survived the attack and walked about a quarter of a mile to a neighbor's house to get help. She later supplied a description of the man who had attacked her, and appellant was subsequently identified and arrested. When Harris returned home, he found the telephone line had been cut. He told the authorities that appellant had been to his home on several occasions and had learned where the telephone line was the day appellant helped Harris fix a leaking pipe at the house. Scientific tests conducted on the clothes recovered from appellant and testimony from the medical examiner regarding Kaylene's wounds corroborated statements appellant gave to the police concerning the incident. However, appellant claimed that he had no specific intent to commit sexual assault when he broke into the Harris home. Rather, everything happened spontaneously.
In point of error twenty-six, appellant asserts that the evidence is legally insufficient to prove capital murder because he did not specifically intend to commit aggravated sexual assault when he broke into the Harris trailer. In point of error twenty-seven, he asserts that the evidence is factually insufficient for the same reason.
In reviewing the legal sufficiency of the evidence, this Court looks at all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.FN4 The indictment in the instant case alleged that appellant intentionally caused the death of Kaylene Harris while in the course of “committing burglary of a habitation with intent to commit aggravated sexual assault.” FN5 The State's evidence included appellant's own statements that he broke into the Harris trailer without consent and sexually assaulted a young girl at knifepoint. His statements also indicated that he prepared to encounter persons in the home by securing a knife before arriving at the residence. Other evidence showed that appellant knew the Harris family and the layout of their home, knew that Terry Harris would be out-of-town, and knew the location of the phone line. Finally, the jury could have rationally inferred appellant's intent to commit aggravated sexual assault from his obsession with sex at the bar earlier in the evening and from the fact that he secured a weapon before he went to the Harris home.
FN4. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). FN5. The indictment contained a second count charging appellant with murdering Kaylene Harris while in the course of committing aggravated sexual assault, however, this count was subsequently quashed.
Looking at the evidence in the light most favorable to the verdict, we hold that the jury could have rationally determined that appellant murdered Kaylene Harris while in the course of committing burglary with the intent to commit aggravated sexual assault. Point of error twenty-six is overruled.
In a factual sufficiency review, this Court views all the evidence without the prism of “in the light most favorable to the prosecution” and sets aside the verdict only if the evidence supporting the verdict is so weak or so against the great weight and preponderance of contrary evidence as to render the verdict clearly wrong and manifestly unjust.FN6 A clearly wrong and unjust verdict occurs where the jury's finding is “manifestly unjust,” “shocks the conscience,” or “clearly demonstrates bias.” FN7
FN6. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App.2000); see also Goodman v. State, 66 S.W.3d 283, 285–86 (Tex.Crim.App.2001). FN7. Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App.1997) (holding that death penalty convictions can be reviewed for factual sufficiency).
In conducting such a review, we consider all of the evidence weighed by the jury, comparing the evidence which tends to prove the existence of the elemental fact in dispute to the evidence which tends to disprove it. FN8 We are authorized to disagree with the jury's determination even if probative evidence exists which supports the verdict, but we must avoid substituting our judgment for that of the fact-finder.FN9
FN8. Johnson, 23 S.W.3d at 7. FN9. Johnson, 23 S.W.3d at 7; Santellan, 939 S.W.2d at 164.
The evidence that appellant asserts weighs against a finding that he broke into the Harris home with a specific intent was his own statement that he had no such intent. This does not render the evidence factually insufficient. Point of error twenty-seven is overruled.
II. VOIR DIRE
A. Parole questions
In points of error six through nineteen, appellant contends that the trial court violated Article I, section 10 of the Texas Constitution and the Due Process Clause of the Fourteenth Amendment to the United States Constitution when it refused to allow him to question the entire venire and various individual veniremembers on the law of parole. Specifically, he asserts that he was not allowed to ask the following four questions:
1. Would the minimum length of time a defendant could serve in prison before he could be paroled be something you would want to know in answering the special issues? 2. On which special issue would this be important? How would this 40 year minimum sentence be important to you in answering the special issues? 3. Would you be more likely, or less likely, generally, to view a defendant as a continuing threat to society if you knew he could not be paroled for a minimum of 40 years? 4. What kind of evidence would you expect, as a juror, to help you in considering the 40–year parole ineligibility factor when answering the special issue? FN10. Appellant also points out that the trial court sua sponte disallowed defense counsel's attempt to ask a prospective juror “when you think of a life sentence, what does that mean to you?” as an example of the trial court's actions in precluding questioning about minimum parole eligibility. However, a juror's preconceived opinion about a capital life inmate's eligibility for parole is irrelevant to the case.
He also complains that the trial court specifically ruled that no questions regarding parole law would be permitted. Appellant contends that, after the statutory amendment adding Article 37.071, § 3(e)(2)(B),FN11 parole eligibility became an issue applicable to capital murder prosecutions, and thus, a proper inquiry for voir dire. FN11. The statute provides in relevant part: (2) The court, on the written request of the attorney representing the defendant, shall: * * * (B) charge the jury in writing as follows: “Under the law applicable in this case, if the defendant is sentenced to imprisonment in the institutional division of the Texas Department of Criminal Justice for life, the defendant will become eligible for release on parole, but not until the actual time served by the defendant equals 40 years, without consideration of any good conduct time. It cannot accurately be predicted how the parole laws might be applied to this defendant if the defendant is sentenced to a term of imprisonment for life because the application of those laws will depend on decisions made by prison and parole authorities, but eligibility for parole does not guarantee that parole will be granted.”
The State contends that, despite the enactment of the parole instruction provision, parole remains an improper subject of voir dire because “society” includes both free and prison society, and therefore, incarceration does not reduce or increase the defendant's future dangerousness. Alternatively, the State argues that parole does not become an issue applicable to the case until requested under the statute, and therefore, appellant was not entitled to ask questions about parole because he had not yet submitted a written request for an instruction under § 3(e)(2)(B).
The trial court has broad discretion over the process of selecting a jury.FN12 Without the trial court's ability to impose reasonable limits, voir dire could go on indefinitely.FN13 Thus, we leave to the trial court's discretion the propriety of a particular question and will not disturb the trial court's decision absent an abuse of discretion. FN14 A trial court abuses its discretion when it prohibits a proper question about a proper area of inquiry.FN15 A question is proper if it seeks to discover a juror's views on an issue applicable to the case.FN16 However, an otherwise proper question is impermissible if the question attempts to commit the juror to a particular verdict based on particular facts.FN17 In addition, a trial judge may prohibit as improper a voir dire question that is so vague or broad in nature as to constitute a global fishing expedition.FN18
FN12. Barajas v. State, 93 S.W.3d 36, 38 (Tex.Crim.App.2002). FN13. Id. FN14. Id. FN15. Id. at 38. FN16. Id. FN17. Id.; see also Standefer v. State, 59 S.W.3d 177, 181 (Tex.Crim.App.2001). FN18. Id.
With the change in the law effective September 1, 1999, a jury may now be instructed on a capital defendant's eligibility for parole.FN19 Assuming, without deciding, that the statutory change renders questioning about parole permissible in some situations,FN20 appellant has failed to show error here.
FN19. See Art. 37.071 § 2(e)(2)(B). FN20. In Jones v. State, we addressed a defendant's claim that the trial court erred in failing to permit voir dire on parole law as it applied to the lesser-included offense of murder. 843 S.W.2d 487, 498 (Tex.Crim.App.1992), cert. denied, 507 U.S. 1035, 113 S.Ct. 1858, 123 L.Ed.2d 479 (1993). We did not determine whether the refusal to permit questioning on the subject was error; instead, we held that any error that might have been committed was harmless because the defendant was convicted of capital murder, and thus, there was no occasion to submit parole instructions to the jury on the lesser offense. Id.
To preserve error, appellant must show that he was prevented from asking particular questions that were proper. That the trial court generally disapproved of an area of inquiry from which proper questions could have been formulated is not enough because the trial court might have allowed the proper question had it been submitted for the court's consideration.FN21 Here, none of appellant's proposed questions were proper. FN21. See Tex.R.App. P. 33.1(a)(1)(A).
All of appellant's questions relate to how a particular fact (in this case, the minimum amount of time a capital life defendant must be incarcerated before becoming eligible for parole) might influence jury deliberations. These types of questions implicate the strictures imposed by Standefer against commitment questions and by Barajas against ambiguous questions.FN22 Appellant's questions all appear to be attempts, either directly or through ambiguously worded questions, to commit the veniremembers to giving mitigating or aggravating effect to the minimum parole eligibility requirement. Appellant's first proposed question—about whether a veniremember would want to know the minimum time a defendant could serve in prison before he could be paroled—is not strictly relevant to a juror's duties or any issue in the case. What the jurors wants to know is immaterial; the trial court will give jurors the proper information about the application of the law. The perceived relevance of the question stems from why a juror wants to know about parole law. This implied “why” question is ambiguous. Does the prospective juror want to know minimum parole eligibility because that knowledge will foreclose honest consideration of the special issues or because that knowledge will have an impact on how evidence is evaluated with regard to the special issues? FN23 If the latter, the question is really designed to determine whether the veniremember would give, or to commit the veniremember to giving, mitigating or aggravating impact to the minimum parole eligibility requirement. Appellant's second and fourth questions invite the prospective jurors to set the parameters for their decision-making by determining to which special issues the parole eligibility instruction would be considered relevant, the mitigating or aggravating impact the instruction would have on the juror's consideration of the special issues, and what evidence would tend to accentuate or minimize the parole instruction's mitigating or aggravating effect. FN24 Appellant's third question directly seeks to determine whether a prospective juror will give the parole instruction mitigating or aggravating effect in the context of the future dangerousness special issue. Although a capital life inmate's minimum parole eligibility is in some sense a fact, it is also codified by statute and now provided for by statute as an instruction. Because of this incorporation into the statutory framework, a prospective juror must be able to keep an open mind on the punishment special issues even after acquiring knowledge of this fact.FN25 But the law neither requires nor precludes the factoring of the parole instruction into the jurors' analysis of the special issues; so, any attempt to commit prospective jurors to giving mitigating, aggravating, or even no effect to the parole instruction is impermissible.FN26 Thus, the trial judge did not err when he refused to allow appellant to ask the entire venire or various individual veniremembers the proposed questions on the law of parole. Points of error six through nineteen are overruled.
FN22. These are not questions, for example, that inquire into a prospective juror's personal background for the purpose of determining whether that background will adversely affect the juror's ability to decide the case in an impartial manner, nor are they inquiries into a prospective juror's general philosophical outlook on the justice system (such as whether the retribution, deterrence, or rehabilitation is the prime goal of the criminal justice system). The parties are given broader latitude to ask such general background and philosophy questions. FN23. See Barajas, 93 S.W.3d at 39. FN24. See Allridge v. State, 850 S.W.2d 471, 480 (Tex.Crim.App.1991), cert. denied, 510 U.S. 831, 114 S.Ct. 101, 126 L.Ed.2d 68 (1993); see also Standefer, 59 S.W.3d at 180. FN25. Standefer, 59 S.W.3d at 181; Johnson v. State, 982 S.W.2d 403, 405 (Tex.Crim.App.1998). FN26. Standefer, 59 S.W.3d at 181–182; Raby v. State, 970 S.W.2d 1, 3 (Tex.Crim.App.), cert. denied, 525 U.S. 1003, 119 S.Ct. 515, 142 L.Ed.2d 427 (1998).
B. Future dangerousness question
In his twenty-third point of error, appellant complains that the trial court erred when it prohibited him from asking a venireperson whether she could answer the future dangerousness issue “no” if the defendant had just been convicted of the capital murder of a young girl. Specifically, the following occurred: [By defense counsel] Q. That's fine. Can you imagine a set of circumstances, set of facts where you would find a person guilty of capital murder, of killing a young girl where you would answer question number one no if you thought that that is the kind of case that was— THE COURT: Well, just disregard the—that clause, killing of a young girl. Now counsel—go ahead, [prosecutor]. [By the prosecutor]: We'll object on the basis that [defense counsel] is trying to commit the juror to a specific course of action or a specific set of facts. THE COURT: Sustained. Without further comment to the court, defense counsel rephrased his question and asked it again.
As we explained in Standefer, a commitment question is one which seeks to “commit a prospective juror to resolve, or to refrain from resolving, an issue a certain way after learning a particular fact.” FN27 Further, such a question is proper only when it includes such facts, and only those facts, that lead to a challenge for cause.FN28 FN27. 59 S.W.3d at 179. FN28. Id. at 182.
The question that appellant wanted to ask the venireperson sought to commit her to a particular answer after learning a particular fact. Thus, as phrased, it was a commitment question. Further, that a defendant has been convicted of the capital murder of a young girl is a factor that a juror could consider in determining punishment. However, the law does not require the juror to consider the factor or to give it any weight. Therefore, regardless of her answer to the specific question asked, the prospective juror would not have been subject to a challenge for cause. The trial court did not err in refusing to allow appellant to ask an improper commitment question. Point of error twenty-three is overruled.
C. Challenges for cause
In his twentieth, twenty-first, and twenty-second points of error, appellant complains about the trial court's failure to grant his challenges for cause to venirepersons Urbano Gonzalez and Gregory Sedbrook. Specifically, he complains that each had a bias against some phase of the law upon which he was entitled to rely. FN29. See Art. 35.16(c)(2).
To preserve error on denied challenges for cause, an appellant must demonstrate on the record that: 1) he asserted a clear and specific challenge for cause; 2) he used a peremptory challenge on the complained-of venireperson; 3) all his peremptory challenges were exhausted; 4) his request for additional strikes was denied; and 5) an objectionable juror sat on the jury.FN30 The record reflects that appellant exhausted all fifteen of his peremptory challenges, received an additional challenge, used that challenge, and then requested, but was denied, further challenges. Appellant then objected to the seating of the twelfth juror, thereby preserving any error for review on appeal.FN31
FN30. Feldman v. State, 71 S.W.3d 738, 743–45 (Tex.Crim.App.2002); Green v. State, 934 S.W.2d 92, 105 (Tex.Crim.App.1996), cert. denied, 520 U.S. 1200, 117 S.Ct. 1561, 137 L.Ed.2d 707 (1997). FN31. See Feldman, 71 S.W.3d at 743–45; Green, 934 S.W.2d at 105.
When the trial judge errs in overruling a challenge for cause against a venireperson, the defendant is harmed if he uses a peremptory strike to remove the venireperson and thereafter suffers a detriment from the loss of the strike.FN32 Because the record reflects that appellant received an extra peremptory challenge in addition to the fifteen he was granted by statute, appellant can demonstrate harm only by showing that both of his complained-of challenges were erroneously denied. Feldman, 71 S.W.3d at 743–45; Penry v. State, 903 S.W.2d 715, 732 (Tex.Crim.App.), cert. denied, 516 U.S. 977, 116 S.Ct. 480, 133 L.Ed.2d 408 (1995). FN32. Feldman, 71 S.W.3d at 743–45; Demouchette v. State, 731 S.W.2d 75, 83 (Tex.Crim.App.1986), cert. denied, 482 U.S. 920, 107 S.Ct. 3197, 96 L.Ed.2d 685 (1987).
A defendant may properly challenge any prospective juror who has a bias or prejudice against any phase of the law upon which he is entitled to rely.FN33 When reviewing a trial court's decision to grant or deny a challenge for cause, we look at the entire record to determine if there is sufficient evidence to support the trial court's ruling.FN34 The test is whether the bias or prejudice would substantially impair the prospective juror's ability to carry out his oath and instructions in accordance with the law.FN35 Before a prospective juror can be excused for cause on this basis, however, the law must be explained to him and he must be asked whether he can follow that law regardless of his personal views.FN36 Finally, the proponent of a challenge for cause has the burden of establishing his challenge is proper.FN37 The proponent does not meet his burden until he has shown that the venireman understood the requirements of the law and could not overcome his prejudice well enough to follow it.FN38
FN33. Art. 35.16(c)(2). FN34. Feldman, 71 S.W.3d at 743–45; Patrick v. State, 906 S.W.2d 481, 488 (Tex.Crim.App.1995), cert. denied, 517 U.S. 1106, 116 S.Ct. 1323, 134 L.Ed.2d 475 (1996). FN35. Feldman, 71 S.W.3d at 743–45. FN36. Id. FN37. See Feldman, 71 S.W.3d at 747. FN38. Id.
In point of error twenty-two, appellant complains about prospective juror Sedbrook. Specifically, he complains that the trial court erred in denying his challenge to Sedbrook because the prospective juror “was biased against the law that ‘society’ comprises persons inside prison.” Specifically, appellant bases his claim on the following exchange: Q. [By defense counsel] You know, in answering [the future dangerousness question], would you consider whether those persons are going to commit acts of violence in prison? A. [Venireperson] I'm not sure about that one, I guess. To me when I saw society I guess we all kind of feel—or I feel like it is people that are outside of the prison. THE COURT: No, that's not necessarily the meaning of the term. It can be the person's environment.
We must look at this exchange in the context of the entire conversation. Just prior to the above-quoted exchange, defense counsel asked Sedbrook for his definition of society. Sedbrook responded that society meant all individuals. When counsel asked Sedbrook if he could envision a type of society existing behind prison walls, Sedbrook said that he could. This was the extent of the conversation regarding the definition of society. After the judge's brief comment that society did not necessarily mean just the people outside of the prison, Sedbrook was never asked whether he could follow any instructions the judge gave him regarding the term. Given the record, appellant has failed to meet his burden of showing that the law was explained to the venireperson, or that the venireperson was asked whether he could follow that law regardless of his personal views. As such, we cannot say that the trial judge erred in denying appellant's challenge for cause to veniremember Sedbrook. Point of error twenty-two is overruled. Because the trial court did not err in denying appellant's challenge to Sedbrook, appellant cannot show on appeal that both of his complained-of challenges for cause were erroneously denied. Thus, he cannot show harm. FN39 Points of error twenty and twenty-one are overruled. FN39. See Feldman, 71 S.W.3d at 747.
III. ADMISSION OF EVIDENCE
A. Videotaped statements
In his first two points of error, appellant complains that the trial court erred when it overruled his objections to State's Exhibits One–A and Three because the State failed to provide the defense with a copy of either exhibit “within 20 days of commencement of the pre-trial hearing in this case,” in violation of Article 38.22, § 3(a)(5).
On February 16, 2000, defense counsel filed a motion to suppress any statements appellant gave to authorities on the ground that they were not given voluntarily. In a pretrial hearing on April 28, defense counsel asked that his motion to suppress be reset to a later pretrial hearing to give him time to have appellant examined by his appointed psychologist. The trial court granted appellant's request and also set jury selection to begin on August 22.
On June 25, the trial court held a second pretrial hearing. The judge noted at this hearing that the motion to suppress was still pending and asked if the parties were ready to litigate the matter. The State responded that it was ready to proceed; however, defense counsel stated that he was not. Nonetheless, the court proceeded to hold a Jackson v. Denno hearing to determine whether any statements appellant had made were given voluntarily. FN40 The prosecutor advised the court of the existence of two videotapes containing statements made by appellant.FN41 Defense counsel objected that he did not have copies of the videotapes. He then argued that competency was an issue in determining the voluntariness of the statements and complained that the court had not allowed him funds to have appellant evaluated. The judge reminded defense counsel that he had, in fact, provided him funds. The judge also noted that he was not concerned with the contents of the tapes and therefore saw no need to play the tapes. The judge then proceeded with the hearing on the motion to suppress.
FN40. See Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). FN41. The court also reviewed the voluntariness of two written statements appellant gave the authorities (identified as State's (pretrial) Exhibits Three and Four). However, the written statements are not at issue in these two points of error.
During direct examination of the first witness, the prosecutor introduced State's (pretrial) Exhibit One, a videotaped statement that appellant had given authorities, and State's (pretrial) Exhibit Two, a videotaped walk-through of the crime scene. After the State questioned its remaining witnesses and rested, the prosecutor urged the court to overrule appellant's motion to suppress. Defense counsel argued in response: Your Honor, first of all, 38.22 does provide that the—prior to the statement not later than the 20th day before the date of the proceeding the attorney representing the defendant is to be provided with a true, complete and accurate copy of the recordings, and I was not given a complete—or any copies of the recordings. Apparently they have been available since January. The Court responded, “You will get to look at them.” Counsel further asked the court to reserve ruling on the motion until he had a chance to have appellant evaluated by the defense expert. He also asked for time to review blood evidence that had been taken from appellant. The court overruled the motion to suppress. FN42. We will assume, without deciding, that appellant properly objected at the pretrial hearing.
On September 12, the first day of trial, the videotaped walk-through of the crime scene (State's (pretrial) Exhibit Two) was offered and admitted into evidence as State's (trial) Exhibit Three. Defense counsel reiterated many of the objections he had made previously but did not reassert the Article 38.22, § 3(a)(5) objection he made at the pretrial hearing on the motion to suppress. The next day, the State had a witness identify State's (trial and pretrial) Exhibit One, appellant's videotaped statement. However, when the prosecutor offered the exhibit into evidence, defense counsel asked the court to withhold its ruling until counsel had an opportunity to visit with the court. The court granted counsel's request, explaining to the jury that certain preliminary requirements must be met before a tape can be admitted, and the court had to review the tape before it could rule on the tape's admissibility. State's (trial) Exhibit One was never admitted into evidence at trial.
On September 14, the State identified State's (trial) Exhibit One–A through its witness and offered it into evidence. The trial court explained that the exhibit was a redacted version of appellant's original videotaped statement (State's (trial and pretrial) Exhibit One) which was prepared by defense counsel at the court's direction. Defense counsel objected to the exhibit on the same grounds that he had objected to State's Exhibit One. The trial judge overruled counsel's objections and admitted the exhibit. FN43. We will assume, without deciding, that appellant's objections to exhibit One and One–A at trial were sufficiently clear incorporations of his § 3(a)(5) objections at the pretrial hearing to make the trial court aware that he was lodging a § 3(a)(5) complaint at trial.
Relying upon Tigner v. StateFN44 and commentary by Professors Dix and Dawson,FN45 appellant contends that § 3(a)(5) applies to pretrial hearings and that the State's failure to provide the videotapes within twenty days of the pretrial hearing precludes their admission at trial. Relying upon Lane v. StateFN46 and Article 28.01, § 2, the State contends § 3(a)(5) does not apply to proceedings occurring before voir dire. FN44. 928 S.W.2d 540 (Tex.Crim.App.1996). FN45. George E. Dix and Robert O. Dawson, TEXAS PRACTICE: CRIMINAL PRACTICE AND PROCEDURE, § 13.104 (1995); see also George E. Dix and Robert O. Dawson, TEXAS PRACTICE CRIMINAL PRACTICE AND PROCEDURE, 2nd Ed., § 13.166 (2001). FN46. 933 S.W.2d 504 (Tex.Crim.App.1996)(plurality opinion).
Article 38.22, § 3(a)(5) provides that: No oral or sign language statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless: * * * (5) not later than the 20th day before the date of the proceeding, the attorney representing the defendant is provided with a true, complete, and accurate copy of all recordings of the defendant made under this article.
Under our decision in Boykin v. State, we interpret a statute in accordance with the plain meaning of its language unless the language is ambiguous or the plain meaning leads to absurd results that the Legislature could not possibly have intended.FN47 In accordance with those standards, we have twice before construed the language of this provision. In Tigner, we construed the word “criminal proceeding” to encompass voir dire as part of the trial in a criminal prosecution.FN48 In so doing, we relied upon the language of the statute, the legislative history, and commentary from Professors Dix and Dawson's treatise on criminal procedure. FN49 We observed that the phrase “criminal proceeding” is a “very broad” term, “conceivably extending to all phases of a criminal prosecution.” FN50 After examining the legislative history, we found that the purpose of the twenty-day requirement was to give defense counsel “adequate time to prepare possible challenges to the admissibility or credibility” of the recorded statements at issue.FN51 We referred to one senator's remarks that the time requirement would enable testing of the recording to determine whether any splicing, alteration, or other improprieties had occurred. FN52 The provision's author indicated that the twenty-day requirement would enable counsel to have a copy of the recording with ample time to plea bargain.FN53 We found that these purposes would be frustrated in many cases if defense counsel were unable to obtain a copy of the recording before voir dire and that defense counsel might be precluded from questioning the venire about the application of Article 38.22.FN54 Finally, we cited Professors Dix and Dawson's opinion that the term “proceeding” includes a pretrial hearing “if there is one.” FN55
FN47. 818 S.W.2d 782, 785 (Tex.Crim.App.1991). FN48. 928 S.W.2d at 546. FN49. Id. at 543–546, FN50. Id. at 544. FN51. Id. at 545. FN52. Id. FN53. Id. FN54. Id. FN55. Id. (citing Dix and Dawson, CRIMINAL PRACTICE AND PROCEDURE, § 13.104).
In Lane, a plurality of this Court construed the word “provided” and held that actual delivery of the recording was unnecessary—defense counsel was provided with the recording when it was made available to him.FN56 The opinion turned to whether counsel had been provided the recording in a timely fashion.FN57 It held that the defense counsel procedurally defaulted any claim that the recording was not provided within twenty days of the pretrial hearing because he failed to object on that basis at the pretrial hearing. FN58 The plurality remarked that, had he objected, “he may have been entitled to a twenty-day continuance of the hearing to examine copies of the recordings.” FN59
FN56. 933 S.W.2d at 516. FN57. Id. FN58. Id. FN59. Id.
Although we have not yet held that § 3(a)(5) applies to pretrial hearings, our prior opinions have certainly laid the groundwork for doing so. Such a holding would be consistent with the language of the statute, which employs the broad term “criminal proceeding.” The legislative history regarding the need for time to prepare challenges to the recording also supports the notion that such time to prepare should be given before the pretrial hearing, where such challenges will take place. And of course, such a holding would also be consistent with Professors Dix and Dawson's commentary on the issue.
The State contends that it should not be required to provide recordings twenty days before the pretrial hearing because the provision of recordings twenty days before voir dire gives the defendant sufficient time to evaluate and test the evidence. That contention ignores the purpose of having a pretrial hearing on a suppression of evidence question—to settle the issue before trial. This purpose becomes especially salient for the plea-bargaining defendant because his appellate rights are limited, one category of appealable issues being motions that have been raised and ruled upon before trial.FN60 The State also suggests that defendants can manipulate the system because they can wait until ten days before the pretrial hearing to file a motion to suppress—thereby making it impossible for the State to give the requisite twenty days notice. But the State is not entitled to wait for the defendant to file a motion to suppress to turn over a copy of the recording. If there had been no pretrial hearing and the defendant had first objected to the evidence at trial, the State would not be excused from the twenty-day requirement simply because it did not know the defendant would object. FN61 The same reasoning applies to pretrial hearings. The State possesses the recording and knows that it may offer the oral statement at trial, and therefore, the State knows that the oral statement's admissibility may be litigated at the pretrial hearing.
FN60. See TEX. R. APP. P. 25.2(b)(3). FN61. See Tigner, 928 S.W.2d at 546 n. 8.
Moreover, the State misinterprets Article 28.01, as that statute precludes the filing of any motions less than seven days before the pretrial hearing but only if the defendant has had at least ten days in which to file motions. FN62 In other words, the statute contemplates that, if the defendant has at least seventeen days notice of the pretrial hearing, then he must file pretrial motions at least seven days in advance of that hearing. It is possible that the trial court could provide such short notice of the pretrial hearing that there would not be twenty days from the time of notice to the time of hearing, either because the trial court gives at least seventeen but less than twenty days notice or because the trial court decides to waive the seven-day filing requirement as to the defendant. Nevertheless, such an occurrence is not attributable to the defendant, and in any event, can be remedied without significant prejudice to the State, as will be explained below.
FN62. Article 28.01, § 2, which provides in relevant part: When a criminal case is set for such pretrial hearing, any such preliminary matters not raised or filed seven days before the hearing will not thereafter be allowed to be raised or filed, except by permission of the court for good cause shown; provided that the defendant shall have sufficient notice of such hearing to allow him not less than 10 days in which to raise or file such preliminary matters. See also Postell v. State, 693 S.W.2d 462, 465 (Tex.Crim.App.1985).
The State also contends that our decision in Lane favors the State's interpretation because that decision showed that we are “inclined to construct section 3(a) in a manner that will not require exclusion of evidence when the defense has shown no appreciable harm.” In Lane, we indicated that the purpose of the statute can guide interpretation of ambiguous language, FN63 but the above discussion shows that applying the twenty-day requirement to pretrial hearings actually furthers the purpose of giving the defendant adequate notice to prepare a challenge to the evidence and to conduct plea negotiations. And in fact, Lane recognized the possibility, albeit in dicta, of the twenty-day provision applying to pretrial hearings.FN64
FN63. 933 S.W.2d at 516. FN64. Id. at 516.
Finally, one might contend that evidence is not really “admitted” at pretrial hearings, as pretrial hearings are not governed by the rules of evidence in the first place, so the statute must refer to the trial phase of the prosecution. While it is now true that the rules of evidence do not apply to suppression hearings,FN65 at the time the twenty-day provision was added to Article 38.22, the rules of evidence did apply to such hearings.FN66 And while the rules of evidence, in general, do not apply to suppression hearings, the statute has priority over the rules, FN67 and thus carves out an exception in this instance. We conclude that § 3(a)(5) applies to pretrial hearings.
FN65. Granados v. State, 85 S.W.3d 217, 227 (Tex.Crim.App.2002). FN66. See former TEX. R. CRIM. EVID. 1101(d)(4)(1988). FN67. See TEX. R. EVID. 101(c).
Even though the statute applies to pretrial hearings, one might contend that the statute does not apply here because the trial court never formally admitted the oral statements into evidence, did not examine the recordings, and did not inquire into the statements' contents. But the oral statements were the subject of a voluntariness claim. Where the oral statement is the subject of the hearing, we will not engage in hairsplitting and perhaps confusing distinctions concerning whether the statement was “admitted” at the pretrial proceeding. We believe the legislative purpose of giving defense counsel time to prepare is effectuated by preventing the trial court from considering the statement for any purpose.
Having held that the statute applies to pretrial hearings, and to any use of the statement at such hearings, we turn next to the effect of the statute's application. Appellant contends that the failure to provide a copy of the recording twenty days in advance of the pretrial hearing renders the oral confession inadmissible at trial. We disagree. Isolating the pertinent language shows the provision to read as follows: “No oral ... statement ... shall be admissible against the accused in a criminal proceeding unless ... not later than the 20th day before the date of the proceeding [a copy of recording is provided]” (emphasis, ellipses, and bracketed material added). The plain meaning of the statutory language is that “the proceeding” in § 3(a)(5) is the same proceeding as “a criminal proceeding” in the introductory clause of § 3(a). The proceeding to which the twenty-day requirement applies is the same proceeding at which the evidence is rendered inadmissible, when there is no compliance. Thus, failure to provide the recording twenty days before the pretrial hearing renders the oral confession inadmissible at the pretrial hearing. The State complied with the twenty-day requirement with regard to trial, and so, the oral confession was not rendered inadmissible at trial under this provision.
As we suggested in Lane, the practical remedy for the failure to comply with § 3(a)(5) with regard to the pretrial hearing is a twenty-day continuance of the hearing. Essentially, the defendant has the right to prevent the trial court from considering the admissibility of the oral confession until twenty days after a copy of the recording is provided. Appellant's reliance upon Professors Dix and Dawson is a double-edged sword because, in the second edition of their treatise, they express approval of the remedy suggested in Lane: “as Lane suggests, the most appropriate remedy would seem to be to give the defendant a right to delay of the pretrial hearing to enable the defense to make use of the copies for purposes of addressing the pretrial hearing issues.” FN68. Dix and Dawson, 2nd ed., § 13.166 n. 3.
Because a violation of § 3(a)(5) is statutory, the appropriate harm analysis is the standard found in Rule 44.2(b).FN69 In interpreting former Rule 81(b)(2), Tigner held that the focus of the harm analysis is on the harm flowing from the erroneous admission of the evidence.FN70 We agree that the focus of a harm analysis for this statute remains unchanged under Rule 44.2(b), but in this case, the erroneous use of the evidence occurred not at trial, but at the pretrial hearing. Appellant reurged his objection to Exhibit One and was allowed to litigate further its admissibility at a time when the twenty-day requirement had long since been fulfilled. Defense counsel was also given the opportunity to edit that exhibit so that a redacted version, rather than the original, was played before the jury. Although exhibit three's admissibility was not relitigated, appellant had the opportunity at trial to lodge a § 3(a)(5) objection to its admissibility and did not do so.FN71 We do not agree with appellant's contention that the error at the pretrial hearing requires the trial court to bar admission of the evidence at trial, and appellant offers no reason for us to conclude that he was otherwise harmed by the error. On this record, the error clearly appears to us to be harmless because appellant was given a timely opportunity to relitigate the admissibility of the evidence. The State points to the strength of other evidence supporting the conviction as rendering the error harmless, and we agree that the strength of other evidence is relevant to a harm analysis, but even without such evidence, we conclude the error is harmless here. Points of error one and two are overruled.
FN69. “Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.” TEX. R. APP. P. 44.2(b). FN70. 928 S.W.2d at 547–548. FN71. Arguably, the failure to lodge an objection to the admission of exhibit three at trial procedurally defaults any error in that regard. Due to our disposition on the harm analysis, we do not address this potential preservation issue.
B. Videotape of prison facilities
Appellant complains in points of error three, four, and five that the trial court erred under Texas Rule of Evidence 403, the Eighth Amendment to the United States Constitution, and the Due Process Clause of the Fourteenth Amendment when it held inadmissible Defendant's Exhibit Two, a videotape depicting the administrative segregation facilities of a Texas prison unit. Appellant called psychologist Windell Dickerson to testify at the punishment stage of trial. During direct examination, Dr. Dickerson identified a fifty-seven minute videotape that showed “the physical facilities of an administrative segregation unit in the Texas Department of Criminal Justice, and the buildings in which those units are housed.” He testified that the video “[c]onceivably [ ] could” assist the jury “in determining whether or not a prison system can, in fact, control [appellant.]” No evidence was offered that the circumstances portrayed in the videotape would specifically apply to appellant in his situation.
Outside the presence of the jury, the State objected that the tape was not relevant, that it was more prejudicial than probative under Rule 403, that it was cumulative of testimony Dickerson had already given, and that it was long and did not add anything that would assist the jury. Defense counsel responded that the tape was not cumulative and would aid the jury in answering the future dangerousness issue because it showed generally how prisoners are moved, housed, and fed, and how they go to the nurse or to recreate. Defense counsel also offered to cut the tape down to a length of ten to fifteen minutes. Questioning the relevancy of the videotape, the court sustained the State's objection, noting that the tape showed only one aspect of prison life and did not portray the prison system's entire method of operation. The judge further held that any probative value the tape had was substantially outweighed by the danger of misleading the jury as to all aspects of the Texas prison system.
On appellate review a trial court's admission or exclusion of evidence is subject to an abuse of discretion standard.FN72 If the trial court's decision was within the bounds of reasonable disagreement we will not disturb its ruling.FN73
FN72. Rachal v. State, 917 S.W.2d 799, 816 (Tex.Crim.App.), cert. denied, 519 U.S. 1043, 117 S.Ct. 614, 136 L.Ed.2d 539 (1996). FN73. Id.
Texas Rule of Evidence 401 defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Further, except as otherwise provided by statute or rule, a jury is entitled to have before it “all possible relevant information about the individual defendant whose fate it must determine.” FN74 The videotape was not offered as information about the individual defendant or about how the individual defendant might be handled. Rather, as the judge noted, it portrayed only one aspect of an entire system and offered only general information about some procedures used in that system. That others have been controlled in the prison system or that certain procedures are in place without specifically connecting those procedures to appellant was not evidence of consequence to the jury's factual determination of whether appellant would pose a continuing threat to society.FN75
FN74. See Matson v. State, 819 S.W.2d 839, 850 (Tex.Crim.App.1991). FN75. See Art. 37.071 § 2(b)(2).
Even assuming that the evidence was minimally relevant, however, the trial court was within its discretion to exclude the evidence pursuant to Rule 403. Under that rule, relevant evidence may be excluded if “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.” FN76 Rather than assist in the jury's factual determination of the danger appellant posed to society, the videotape might have confused and distracted the jury from its factfinding task. Thus, it was reasonable for the trial court to conclude that the risks of confusing the jury substantially outweighed any probative value the video might have. Under these circumstances, the trial court did not abuse its discretion in excluding the exhibit. Likewise, the court's exclusion of the tape did not violate Eighth and Fourteenth Amendment principles. Points of error three through five are overruled. FN76. See Tex.R. Evid. 403.
C. Written confession
Appellant asserts in his twenty-fourth and twenty-fifth points of error that the trial court erred in admitting into evidence his second written statement (State's Exhibit Five) because he made the statement involuntarily in violation of Article I, section 10 of the Texas Constitution and the Due Process Clause of the Fourteenth Amendment to the United States Constitution. FN77 Specifically, appellant states that he had expressed his desire to die rather than spend his life in prison. He contends that the officer taking the statement used this knowledge to coerce appellant into giving the second statement—which solidified the evidence of the aggravating element of capital murder—by promising appellant that the confession would result in the State seeking the death penalty for the offense. FN77. Appellant does not complain about the voluntariness of either of his oral statements or his first written statement.
“[A] defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of the confession, and even though there is ample evidence aside from the confession to support the conviction.” FN78 The defendant has a right to object to the use of the confession and the right to a hearing to determine whether the confession was voluntary.FN79 The trial court is the sole fact-finder at a Jackson v. Denno hearing and may choose to believe or disbelieve any or all of the witnesses' testimony.FN80 This Court is not at liberty to disturb any finding which is supported by the record.FN81
FN78. Jackson v. Denno, 378 U.S. 368, 376, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). FN79. See id. at 377. FN80. Dewberry v. State, 4 S.W.3d 735, 747–48 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000). FN81. Id.
During the hearing on appellant's motion to suppress, Deputy Sheriff Larry Pope testified about his investigation of the case which led to appellant's arrest and about the circumstances surrounding the taking of the oral and written confessions. On cross-examination, Pope agreed that appellant had made comments about wanting to die rather than spend his life in prison. However, Pope contested defense counsel's interpretation of the comments as showing mental instability. Rather, Pope explained to the court that he took the comments as appellant trying to appear “con tough.” Pope also stated that appellant told him that he had no remorse for the crime. Texas Ranger John Allen, who also participated in some of the interviewing process, did not recall appellant stating at any time that he wanted to die. Appellant did not call any witnesses for the hearing. After the conclusion of the testimony, the trial judge heard arguments. He then entered findings of fact and conclusions of law that appellant freely and voluntarily gave both oral and written statements after intelligently and voluntarily waiving his rights. Because the record evidence supports the trial court's conclusions, we hold the trial court did not abuse its discretion in denying appellant's motion to suppress. Points of error twenty-four and twenty-five are overruled.
IV. CONSTITUTIONALITY OF STATUTE
In points of error twenty-eight through thirty-six, appellant challenges the constitutionality of Article 37.071. Specifically, appellant asserts that Article 37.071 is unconstitutional for the following reasons: (Point 28) The future dangerousness issue is vague because it does not define the terms “probability,” “criminal acts of violence,” and “continuing threat to society.” (Point 29) The mitigation issue does not provide for meaningful appellate review. (Point 30) The mitigation issue fails to place a burden of proof on the State. (Point 31) The “10–12 rule” violates constitutional principles. (Point 32) Failure to allow holdout jurors to know the consequences of their actions violates the Eighth Amendment. (Point 33) The mitigation issue allows open-ended discretion. (Point 34) The mitigation definition improperly limits the concept of mitigation. (Point 35) The death penalty, as presently administered, violates the Eighth Amendment ban against cruel and unusual punishment. (Point 36) The death penalty, as presently administered, violates the Texas Constitution's ban against cruel or unusual punishment. FN82. We have paraphrased appellant's points to convey the thrust of his complaints, as developed in the argument sections relating to each point of error. Although each point was argued separately, we find it convenient to group discussion of them here.
We have addressed and rejected all of these challenges before, and appellant has given us no reason to revisit these decisions here.FN83 Points of error twenty-eight through thirty-six are overruled. FN83. See Feldman, 71 S.W.3d at 757; Cannady v. State, 11 S.W.3d 205, 214 (Tex.Crim.App.), cert. denied, 531 U.S. 850, 121 S.Ct. 125, 148 L.Ed.2d 80 (2000); Ladd v. State, 3 S.W.3d 547, 572–75 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1070, 120 S.Ct. 1680, 146 L.Ed.2d 487 (2000); McFarland v. State, 928 S.W.2d 482, 498–99, 518–21 (Tex.Crim.App.1996), cert. denied, 519 U.S. 1119, 117 S.Ct. 966, 136 L.Ed.2d 851 (1997); Lawton v. State, 913 S.W.2d 542, 555–60 (Tex.Crim.App.1995), cert. denied, 519 U.S. 826, 117 S.Ct. 88, 136 L.Ed.2d 44 (1996).
We affirm the judgment of the trial court. JOHNSON, J., filed a concurring and dissenting opinion. MEYERS and PRICE, JJ., concurred in the result. JOHNSON, J., concurring and dissenting. I respectfully dissent to the disposition of points of error six through nineteen for the reasons stated in my opinion in Standefer v. State, 59 S.W.3d 177, 186–87 (Tex.Crim.App.2001). As to the remainder of the points of error, I concur in the judgment of the Court.
Sells v. Stephens, 536 Fed.Appx. 483 (5th Cir. 2013). (Federal Habeas)
Background: After his state conviction of capital murder and death sentence were affirmed on direct appeal, 121 S.W.3d 748, and state habeas petitions were dismissed, petitioner sought federal habeas relief. The United States District Court for the Western District of Texas, Orlando L. Garcia, J., 2012 WL 2562666, denied petition. Petitioner sought certificate of appealability (COA).
Holdings: The Court of Appeals, W. Eugene Davis, Circuit Judge, held that: (1) petitioner's ineffective assistance of counsel claim was procedurally barred; (2) state habeas counsel's failure to investigate and offer proof of trial attorney's failure to develop and present mitigating evidence at sentencing was not good cause for procedural default; (3) state court's exclusion of video of prison's administrative segregation facilities from penalty phase of capital murder trial was not an unreasonable determination of the facts in light of the evidence; and (4) state court's exclusion of video of prison's administrative segregation facilities from penalty phase of capital murder trial was not contrary to clearly established federal law. Certificate of appealability (COA) denied.
W. EUGENE DAVIS, Circuit Judge: FN*
Petitioner Tommy Lynn Sells (“Sells”) appeals the district court's denial of additional funding and seeks a certificate of appealability (“COA”) to prosecute his application for habeas corpus challenging the constitutionality of his Texas state court death sentence. Sells was denied relief on direct appeal, in three state habeas corpus proceedings, and finally by the district court, and we now AFFIRM the district court's denial of additional funding and DENY Sells's motion for a COA.
A. The Crime
The facts underlying Sell's conviction are not in dispute. Early in the morning on December 30, 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 September 18, 2000. FN1. The trial and story of Sells has garnered a substantial amount of national media attention, due largely to Sells's claim to have committed as many as seventy murders in his lifetime.
At the punishment phase of Sells's trial, the state of Texas sought the death penalty. As evidence of Sells's incapacity for rehabilitation and continuing proclivity for violence, the state first offered the testimony of Danny Calderon (“Calderon”), a prison inmate who had been housed next to Sells for about two months. Calderon testified that during their incarceration together, Sells became angry with him and threatened to maim and kill him. In response to Sells's threats, jail officials had to relocate Calderon to a different part of the facility away from Sells.
The prosecution next called psychologist Dr. Frederick Gary Mears (“Dr. Mears”), who presented expert testimony based primarily on his review of Sells's records and the details of Kaylene Harris's murder. Dr. Mears testified that (1) Sells was “off the scale” in terms of the likelihood of future violence, (2) the past is the best predictor of an individual's future violent behavior, (3) Kaylene's autopsy revealed a number of postmortem wounds consistent with intentional body desecration and mutilation, (4) the nature of many of Kaylene's non-fatal wounds suggested Sells derived pleasure from the brutality of the murder, (5) Sells qualified as a highly manipulative, antisocial personality, (6) consistent with his antisocial personality, Sells displayed a cavalier attitude during his confessions and narrative re-enactment of the crime indicative of a lack of emotion and an absolute indifference to death, (7) Sells's criminal history demonstrated an escalation in violence over time, and (8) Sells displayed no remorse for the murder of Kaylene and attempted murder of Krystal.
The final witness offered by the prosecution was a state fingerprint analyst, who testified that Sells's fingerprints positively verified his out-of-state criminal record. Those records indicated that Sells had been convicted of automobile theft in Wyoming in 1990 and malicious wounding in West Virginia in 1993. In response, the defense called a jail administrator who testified that Sells had only two disciplinary referrals during his eight-month stay in the Texas jail. The defense then called its own psychologist, Dr. Windel Lee Dickerson (“Dr. Dickerson”). Dr. Dickerson testified that he had interviewed Sells at length, listened to an interview with Sells's mother, reviewed Sells's prison records, and spoken with multiple people who had known Sells throughout his life. Based on his investigation, Dr. Dickerson testified that (1) he suspected Sells had been sexually abused as a child by a local pedophile, but that Sells would not discuss the subject, (2) Sells had a profound history of substance abuse that began as early as age seven, (3) a brain-activity scan revealed a widespread pattern of “diffuse abnormality” in Sells's brain functions, (4) psychological testing confirmed that Sells was a very seriously disordered individual, and (5) rather than having a true antisocial personality, Sells had a borderline personality disorder with schizoid, avoidant, and antisocial features and possible brain damage. Moreover, Dr. Dickerson opined that it was not possible to reliably predict Sells's propensity for future violence. Dr. Dickerson summarized his testimony as follows:
What my examination has revealed to this point is, there is a history of life experience which could be—which could be considered instigators to violence, things that prompt him. There are conditions that are present in his mind and body which I think dramatically affect his ability to guide and direct his own behavior and resist those instigations [sic] to violence. Those same things that reduce his capacity for self-restraint have also altered his ability—I think his ability to get a wrap around a lot of bad things that has [sic] happened in his life and reconstruct them, reposition them in his life in such a way that they do not cause him the problems that they have caused, so I think when I talk about Tommy Lynn Sells, I'm talking about somebody who has got a lot of problems that give us cause to be very seriously concerned.
Dr. Dickerson testified further that medications had helped control Sells's propensity for violence during previous incarcerations. In his opinion, the Texas prison system could isolate and manage Sells to such a degree that he did not pose a threat to other prisoners. For example, Dr. Dickerson observed that many of the normal prompters of violence are not present in prison, such as weapons, street drugs, alcohol, personal stress, and financial responsibilities. With proper supervision, medication, and mental illness treatment, Dr. Dickerson testified that prison would greatly limit Sells's ability to place others in danger, especially as he aged. Upon cross-examination, Dr. Dickerson conceded that testing of Sells revealed an extreme lack of empathy, and that such individuals are ordinarily very angry, irritable, unable to express their feelings, and have a low tolerance for personal frustration. Dr. Dickerson further confirmed that although Sells was paranoid and exhibited a host of psychological problems, medical testing revealed no brain tumors or physical seizure disorders. Moreover, he admitted that Sells's crime was very opportunistic. Dr. Dickerson claimed not to remember a videotaped statement wherein Sells stated that he was glad he had been caught because he feared hurting other people. Dr. Dickerson also admitted that inmates are free to refuse medication and interfere with their treatment, often do obtain weapons, and can always potentially escape.
In response to the defense's evidence, the prosecution summoned one rebuttal witness, Royce Smithey (“Smithey”), the chief investigator for the Texas Special Prison Prosecution Unit. Smithey testified that prison and prisoner segregation can reduce but do not eliminate the risk of violence. Moreover, “administrative segregation” of a prisoner is merely a prisoner classification, not a type of separate facility. Thus, even segregated prisoners ordinarily have contact with other prisoners and guards. Nonetheless, Smithey conceded that it is a small fraction of prisoners who account for most of the violence in the prison system. In response, the defense attempted to present a videotape documenting one of the administrative segregation facilities used by the Texas prison system. The defense claimed that the tape demonstrated that Sells could be effectively isolated to prevent harm to others, but the trial court excluded the evidence as duplicative and irrelevant. After hearing the testimony, the jury returned a verdict supporting the death penalty for Sells. Specifically, the jury found beyond a reasonable doubt that there was a probability that (1) Sells would commit criminal acts of violence that constituted a continuing threat to society, and (2) taking into consideration all of the evidence, including the circumstances of the offense, and the petitioner's character, background, and personal moral culpability, there were insufficient mitigating circumstances to warrant a sentence of life imprisonment.
C. Post–Conviction Proceedings
Sells immediately appealed his conviction to the Texas Court of Criminal Appeals (“TCCA”), which affirmed both his conviction and his sentence. See Sells v. State, 121 S.W.3d 748 (Tex.Crim.App.), cert. denied, 540 U.S. 986, 124 S.Ct. 511, 157 L.Ed.2d 378 (2003). Among the specific objections addressed by the court and rejected on direct appeal was the trial court's exclusion of the administrative segregation videotape. Sells subsequently applied for a state writ of habeas corpus, relying solely on a claim of ineffective assistance of trial counsel (“IATC”). Specifically, Sells alleged that his trial counsel was ineffective because the attorney failed to investigate and present unspecified mitigating evidence and called too few witnesses at the trial's punishment phase. In support of his IATC claim, Sells offered two exhibits: (1) an affidavit by his state habeas investigator, Ann Matthews, in which she opined that Sells's trial counsel was pursuing book rights, fame, and unrelated murder confessions more aggressively than he was pursuing Sells's defense, and (2) an affidavit by an individual named Bob Schanz alleging that Sells intended to confess to another murder in Missouri.
In response to Sells's IATC evidence, the state presented an affidavit by Sells's trial counsel, which alleged: (1) the defense team's court-appointed investigator had in fact spoken with “various family members of Tommy Lynn Sells and did not find any helpful mitigation evidence that was not already known,” (2) at the defense team's behest, Sells had undergone a brain PET scan which revealed no potentially-mitigating signs of brain damage or schizophrenia, (3) there had never been any discussion of book royalties or publication rights, (4) the defense team made a strategic decision not to call any mitigation witnesses besides Dr. Dickerson because of concerns that they might have knowledge of extraneous offenses committed by Sells which could have been raised and used by the prosecution, and (5) Sells endorsed this strategic decision. In June 2005, the state habeas trial court issued an order and recommended that Sells's habeas corpus petition be denied. The TCCA adopted the findings and recommendation of the trial court, and Sells's habeas corpus petition was denied. See Ex parte Tommy Lynn Sells, WR–62, 552–01 (Tex.Crim.App.2005).
Sells then filed his federal habeas corpus petition in federal district court in August 2006. However, the petition was immediately stayed so that Sells could file a second state habeas corpus application, arguing this time that he was mentally retarded and exempt from execution under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). The TCCA denied investigative funding and dismissed the petition, finding that Sells had failed to make a threshold showing of evidence to support a finding that he is mentally retarded. See Ex parte Tommy Lynn Sells, WR–62, 552–02, 2007 WL 1493151 (Tex.Crim.App.2007). Sells then returned to federal court, which granted him funding to investigate and prepare his Atkins claim. After attempting to develop an Atkins claim, Sells's defense counsel decided it was not worth pursuing. However, his defense counsel alleged that during the investigation, new evidence emerged relating to Sells's chronic childhood sexual abuse and a possible fetal alcohol syndrome disability. According to Sells, this was mitigating evidence that could have justified a sentence other than death, and which Sells's trial counsel should have uncovered. Sells thus requested another stay in federal court to permit him to return to Texas state court and exhaust his IATC claim.
In September 2010, Sells filed a third state habeas corpus application, asserting several new IATC claims. In this petition, Sells alleged deficient assistance of counsel arising out of, among other things: (1) trial counsel's failure to seek a continuance to investigate potential mitigating evidence in Missouri, (2) trial counsel's failure to subpoena out-of-state witnesses to testify as to Sells's childhood, (3) trial counsel's failure to develop and present evidence that Sells suffered from fetal alcohol syndrome, (4) trial counsel's failure to obtain Sells's mental health records and seek a mental health evaluation of Sells, (5) trial counsel's failure to ask defense expert Dr. Dickerson questions that might have “personalized” Sells, (6) trial counsel's failure to obtain adequate expert and investigative funding from the trial court, and (7) first habeas corpus counsel's failure to present all of these claims. In support of his petition, Sells attached a host of documentary evidence, including affidavits, sworn statements, and authenticated documents relating to Sells's mental capacity, background, substance abuse, childhood, and other potentially mitigating factors. Despite the addition of new evidence, the TCCA dismissed Sells's petition pursuant to the Texas writ abuse statute. See Tex.Code Crim. Proc. art. 11.071 § 5.
In December 2010, the federal district court lifted the stay on Sells's petition and directed him to file an amended habeas petition setting forth all of his exhausted claims for relief. Sells immediately filed motions for additional time and funding to develop the claims from his third state habeas petition, which the district court denied. In February 2011, Sells finally filed the instant amended habeas corpus petition in which he again alleged IATC arising out of the same issues he raised in his third state habeas petition. This time, however, Sells attached thirty-four exhibits to support his IATC claims. In addition, Sells argued that the exclusion of the administrative segregation videotape violated his Eighth and Fourteenth Amendment rights. Responding to Sells's multiple claims that his trial counsel failed to adequately investigate and present mitigating evidence during the trial's punishment phase, the district court found that Sells's primary support for these claims was a “plethora of documents” that he had never presented to any state court. Specifically, Sells's new evidence included extensive Missouri penal system records and criminal records reflecting Sells's behavioral problems as a youth, similar records from West Virginia documenting a sexual assault committed by Sells and diagnosis of antisocial behavior, and several expert reports concerning fetal alcohol syndrome spectrum disorders. The district court found that Sells's new “voluminous documents substantially alter the context and content of the ineffective assistance claims” Sells had presented to the state habeas courts. As such, Sells had not fairly presented his claims to the state court, and they were therefore unexhausted and not subject to federal habeas review.
Moreover, the district court found that to the extent any of Sells's IATC claims did not depend on new evidence, they were still unexhausted by virtue of the third state habeas court's refusal to consider them. Because the Texas state court dismissed Sells's third state habeas petition for abuse of the writ, his corresponding habeas claims were unaddressed and procedurally barred under Texas law, and therefore incapable of exhaustion. Accordingly, Sells's IATC claims were not subject to federal habeas review. Regardless, the district court alternatively found that each of Sells's IATC claims failed on the merits anyway. Reviewing each of Sells's IATC claims, the district court concluded that none of the alleged errors either demonstrated a constitutionally deficient level of representation or had caused actual prejudice to Sells. Finally, the district court also rejected Sells's argument that his constitutional rights had been violated by the trial court's exclusion of the administrative segregation videotape.FN2 FN2. Although not challenged in this petition for a COA, the district court also rejected each of the other errors alleged by Sells in his federal habeas petition.
Before a federal habeas petitioner can appeal the district court's denial of his petition, he must first obtain a certificate of appealability (“COA”). See 28 U.S.C. § 2253(c). To obtain a COA, the petitioner must make “a substantial showing of the denial of a constitutional right.” See id. § 2253(c)(2). “Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). However, when the district court denies a habeas petition on procedural grounds, a COA should only issue if “the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. (emphasis added). No COA is necessary to appeal the district court's denial of funds to a habeas petitioner, and we review that portion of the district court's order for abuse of discretion. See Smith v. Dretke, 422 F.3d 269, 288 (5th Cir.2005).
Sells now challenges the district court's denial of habeas relief, and seeks a certificate of appealability with respect to two issues: (1) whether Sells's trial counsel provided ineffective assistance at the sentencing phase of his trial, and (2) whether the exclusion of the administrative segregation videotape violated Sells's Eighth and Fourteenth Amendment rights. In addition, Sells argues that the district court improperly denied him sufficient funding to develop mitigating evidence that would have supported a sentence less than death.
Sells first contends that the district court erred in its determination that his IATC claim was unexhausted and not subject to federal review. Alternatively, Sells contends that if his claim is unexhausted, it may still be entertained because he has established cause and prejudice for his procedural default.
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) precludes a federal court from granting a state prisoner's application for a writ of habeas corpus unless “the applicant has exhausted the remedies available in the courts of the state.” 28 U.S.C. § 2254(b)(1)(A). This “exhaustion requirement is satisfied when the substance of the federal habeas claim has been fairly presented to the highest state court.” FN3 Under this standard, the mere addition of new evidence is not itself enough to render a habeas petitioner's claim unexhausted: “[D]ismissal is not required when evidence presented for the first time in a habeas proceeding supplements, but does not fundamentally alter, the claim presented to the state courts.” FN4 Moreover, the fact that new evidence places a habeas petitioner's claim in a comparatively stronger evidentiary posture than it was in state court is not dispositive. Morris, 413 F.3d at 496. However, evidence that places the claims in a “significantly different legal posture” must first be presented to the state courts. See id. at 491.FN5
FN3. Morris v. Dretke, 413 F.3d 484, 491 (5th Cir.2005) (quoting Mercadel v. Cain, 179 F.3d 271, 275 (5th Cir.1999)), abrogated in part as stated in Lewis v. Thaler, 701 F.3d 783, 790 (5th Cir.2012). FN4. Morris, 413 F.3d at 491 (emphasis in original) (quoting Anderson v. Johnson, 338 F.3d 382, 386 (5th Cir.2003)). FN5. See also Kunkle v. Dretke, 352 F.3d 980, 988 (5th Cir.2003) ( “A habeas petitioner fails to exhaust state remedies ‘when he presents material additional evidentiary support to the federal court that was not presented to the state court.’ ” (quoting Graham v. Johnson, 94 F.3d 958, 968 (5th Cir.1996))).
The determination of whether additional evidence fundamentally alters or merely supplements the state petition is necessarily case and fact specific. Id. However, our decision in Anderson v. Johnson illustrates the type of facts which support a finding that new evidence is merely supplemental. 338 F.3d 382. In Anderson, the highest state court denied Anderson's petition without holding an evidentiary hearing. Id. at 388–89. In his ensuing federal petition, he presented additional evidence in the form of an affidavit from a key eyewitness not called at his trial. Id. Though the evidence had not been considered by the state court, we noted that his state post-conviction brief was “remarkably detailed in both fact and law” and contained specific references to the testimony that was later offered in a federal affidavit. Id. We therefore determined that the affidavit did not “fundamentally alter” his ineffective assistance of counsel claim and therefore held that Anderson had properly exhausted state remedies. Id. FN6. See also Dowthitt v. Johnson, where we considered whether Dowthitt had exhausted his IATC claims arising out of his counsel's failure to present sufficient mitigating evidence of his alleged mental illness. 230 F.3d 733, 746 (5th Cir.2000), abrogated in part as stated in Lewis v. Thaler, 701 F.3d 783, 790 (5th Cir.2012). We found the exhaustion requirement satisfied because Dowthitt had presented detailed assertions of his paranoid schizophrenia to the state courts, even though he later offered additional affidavits by mental health experts opining on that same diagnosis to the federal court. Id.
In other cases, however, we have consistently refused to consider a habeas petitioner's claims exhausted where the petitioner provides substantial amounts of new evidence, the claims and allegations before the state court were conclusory and undeveloped, the petitioner offers new evidence that could not have been derived from the state court record, and the petitioner offers new evidence which alters the nature of his claims. For example, in Ibarra v. Thaler, we considered whether to grant a COA with regard to habeas petitioner Ibarra's claim of mental retardation. 691 F.3d 677, 681–82 (5th Cir.2012). However, the only evidence Ibarra presented to the state court was the affidavit of his investigator, which detailed facts she had discovered regarding Ibarra's alleged early adaptive deficits. Id. at 682. When Ibarra filed his federal habeas petition, he attempted to introduce new evidence, including an authenticated expert report and affidavits from his family and childhood teacher, none of which was a part of the state court record. Id. We concluded that the quantity and quality of Ibarra's new evidence fundamentally altered Ibarra's claim of mental retardation and rendered his claim unexhausted. See id. FN7. See also Kunkle v. Dretke, 352 F.3d 980, 987 (5th Cir.2003) (finding that habeas claim was unexhausted when a detailed affidavit and expert report were used to “supplement” a conclusory affidavit); Brown v. Estelle, 701 F.2d 494, 495–96 (5th Cir.1983) (finding petitioner's claim unexhausted where he presented new affidavits which “added some substantiation to contentions which previously had no serious corroboration”); Demarest v. Price, 130 F.3d 922, 938–39 (10th Cir.1997) (finding IATC claim not exhausted where petitioner's new evidence transformed his ineffective assistance of counsel claim into one that was “significantly different and more substantial”).
In the instant case, Sells's IATC claims fit into the class of cases in which new evidence renders a petitioner's claims unexhausted. When Sells filed his habeas petition alleging the ineffective assistance of his trial counsel, he argued that his attorney failed to investigate and present mitigating evidence about Sells's background. However, in support of this IATC claim, Sells focused on allegations that his trial team had a conflict of interest arising out of their pursuit of book and publicity rights. No new evidence was offered concerning childhood abuse or fetal alcohol syndrome. However, Sells now asks us to consider a bounty of evidence which no state court has yet had the opportunity to evaluate, including: written statements by Sells's mother, brother, childhood family friend, schoolmate, and others; hospital records; Missouri prison system records; a 1990 mental health evaluation; and the affidavits of at least two mental health experts. We agree with the district court that this substantial quantity of new evidence never considered by a state court fundamentally alters Sells's IATC claims and renders them unexhausted. Based on our caselaw, reasonable jurists could not reach a different conclusion.
This determination does not end our inquiry, however. Sells argues that he attempted to present the substance of his instant IATC claims in his third state habeas petition, but the state court refused to consider his petition as an abuse of the writ. With his claims dismissed and procedurally defaulted under Texas law, Sells is effectively precluded from exhausting his IATC claims in state court. Nonetheless, in such cases, we may still consider a petitioner's unexhausted claims if he can demonstrate “cause for the default and actual prejudice as a result of the alleged violation of federal law.” FN8. Johnson v. Cain, 712 F.3d 227, 234 (5th Cir.2013) (quoting Woodfox v. Cain, 609 F.3d 774, 793 (5th Cir.2010)).
The only cause for default which Sells alleges is the ineffective assistance of his habeas counsel in failing to properly develop and investigate the ineffective assistance of his trial counsel. Had Sells's habeas counsel reasonably investigated the deficiency of the trial counsel, then the new evidence which renders Sells's IATC claim unexhausted could have been presented to and considered by the state court in the first state habeas proceeding. Although this argument is only available under certain states' procedural regimes, it is now undisputed that deficient counsel in an initial Texas state habeas proceeding can constitute cause for default.FN9 However, to establish cause, Sells must first establish the deficiency of his habeas counsel. FN9. See Trevino v. Thaler, ––– U.S. ––––, 133 S.Ct. 1911, 1920–21, 185 L.Ed.2d 1044 (2013).
Where a habeas petitioner alleges prejudice arising from the deficiency of his habeas counsel in failing to properly assert the deficiency of his trial counsel, he must demonstrate the constitutional inadequacy of both attorneys to be entitled to relief. See Martinez, 132 S.Ct. at 1318.FN10 Conversely, the petitioner's failure to establish the deficiency of either attorney precludes a finding of cause and prejudice. FN10. To be clear, in cases like this, a prisoner must demonstrate the ineffective assistance of his habeas counsel. However, “a prisoner must [only] demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit.” Martinez, 132 S.Ct. at 1318.
Ineffective assistance of counsel claims are governed by the standard laid out in Strickland v. Washington: First, the defendant must show that counsel's performance was deficient.... Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable. FN11. Roberts v. Thaler, 681 F.3d 597, 610 (5th Cir.2012) (quoting Strickland, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984)).
In order to satisfy the performance prong, Sells must show that both his trial and habeas counsels' representation fell below an “objective standard of reasonableness.” See Strickland, 466 U.S. at 688, 104 S.Ct. 2052. Under the second prong, Sells must show that there is “a reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Id. at 695, 104 S.Ct. 2052. This showing is intentionally difficult to satisfy: “In assessing prejudice under Strickland, the question is not whether a court can be certain counsel's performance had no effect on the outcome.... Instead, Strickland asks whether it is ‘reasonably likely’ the result would have been different.” Harrington v. Richter, ––– U.S. ––––, 131 S.Ct. 770, 791–92, 178 L.Ed.2d 624 (2011).
We begin by examining whether Sells can carry his burden of establishing the constitutional inadequacy of his first habeas counsel, Terry McDonald (“McDonald”). Sells argues that McDonald's representation was deficient because McDonald failed to diligently investigate and offer proof of the trial attorney's failure to develop and present mitigating evidence at sentencing. FN12 As proof of McDonald's incompetence, Sells points to the fact that the habeas petition filed by McDonald was “only 22 pages,” only raised four claims, and was supported by only two exhibits. Moreover, Sells argues that McDonald “virtually abdicated his role” by delegating the mitigating evidence investigation to an investigator; and the investigator's efforts were inadequate because she primarily relied on phone calls to contact potential witnesses. FN12. Based on Sells's federal habeas petition, the alleged shortcomings of trial counsel's mitigation investigation consist of counsel's failure to: seek a continuance to investigate potential mitigating evidence in Missouri, subpoena out-of-state witnesses to testify about Sells's childhood, offer mitigating psychological evidence, obtain Sells's mental health records and seek a mental health evaluation, and ask defense expert Dr. Dickerson questions that might have “personalized” Sells.
Sells fails to offer anything but conclusory assertions to show that McDonald's representation was objectively unreasonable. See Strickland, 466 U.S. at 688, 104 S.Ct. 2052. Sells's reliance upon the length of his habeas petition or the number of claims it raises in no way establishes the unreasonableness of McDonald's actions. The fact that McDonald delegated the investigation of additional mitigating facts to an experienced mitigation specialist is not troublesome at all. Nor have we been offered any reason why an investigator's use of a telephone to speak with potential witnesses should be considered a sign of constitutional deficiency. To the contrary, the evidence demonstrates McDonald's personal efforts to locate mitigating evidence; McDonald's affidavit indicates that he reviewed at length the files of both the defense and the prosecution, but found nothing useful. We also take note of the affidavit of Sells's trial counsel in which he states that the decision not to call further mitigation witnesses was strategically designed to keep the prosecution from eliciting information about Sells's numerous extraneous offenses. Such a strategic decision is entitled to the greatest degree of deference and challenging it would almost certainly have been futile.FN13 Accordingly, Sells has not demonstrated that McDonald's representation fell below acceptable standards. FN13. “[A] ‘conscious and informed decision on trial tactics and strategy cannot be the basis for constitutionally ineffective assistance of counsel unless it is so ill chosen that it permeates the entire trial with obvious unfairness.’ ” Virgil v. Dretke, 446 F.3d 598, 608 (5th Cir.2006) (quoting Johnson v. Dretke, 394 F.3d 332, 337 (5th Cir.2004)).
Even if Sells could demonstrate the objective unreasonableness of McDonald's mitigation investigation efforts, he cannot demonstrate that he suffered actual prejudice. Sells points to the mass of affidavits and reports he has since mustered as the mitigating evidence which a reasonable investigation should have uncovered. However, much of this evidence is of a type that would not have shed any real mitigating light on Sells's background. FN14 Other items of evidence that Sells contends should have been discovered were duplicative,FN15 irrelevant,FN16 or even damaging. FN17 As the district court noted, the only new allegations contained in the “mitigating evidence” offered by Sells are an isolated statement that Sells may have been molested by his mother and grandmother, and bald conjecture that Sells could have a fetal alcohol syndrome disability.
FN14. For example: (1) ECF–103(2), the affidavit of Sells's brother, Timmy Sells (stating that Tommy got picked on as a kid, was not very intelligent, and could not be trusted with many tasks); (2) ECF–103(3), the unsworn declaration of Sells's brother, Timmy Sells (stating that though Tommy worked as a mechanic, he was not capable of doing any complex work); (3) ECF–103(7), the affidavit of Sells's prison acquaintance, Danny Hunter (stating that Tommy was slow, but he still earned his GED in prison); (4) ECF–103(10), neuropsychological evaluation by Dr. Antoinette McGarrahan (positing that Sells was of below average intelligence, abused drugs and alcohol, had antisocial personality disorder, and had borderline personality traits). FN15. For example: (1) ECF–103(4), the affidavit of Sells's mother, Nina Lovins (stating that Sells was a very slow learner and a discipline problem and that he had been sexually abused by a local man); (2) ECF–82(3), the declaration of Sells's childhood friend, Paul Hunt (stating that Sells was slow). FN16. For example: (1) ECF–103(6), the Social Security Administration employment record of Tommy Sells (summarizing earnings from January 1979–December 2000); (2) ECF–103(9), the declaration of Sells's step-son, Jonathan Levrie (stating that Sells worked at a local car dealership and was not around much). FN17. For example: (1) ECF–103(5), Missouri Department of Corrections psychiatric evaluation (indicating that Tommy was of normal intelligence but potentially had a personality disorder); (2) ECF–103(8), declaration of Sells's ex-wife, Jessica Levrie Blanco Sells (stating that Tommy could take care of himself, and that her daughter claimed to have been molested by Sells); (3) West Virginia prison records (documenting the sexual assault accusations against Sells by the victim of his malicious wounding crime).
As to Sells's uncorroborated assertions that he had been molested by his mother and grandmother, that is not the type of evidence that would reasonably have been discovered by even the most thorough investigation by McDonald. Knowledge about this alleged abuse was apparently limited to the parties involved, yet Sells's mother and grandmother have never confessed to it, and Sells himself withheld the information from McDonald. Equally unconvincing is Sells's assertion that evidence of a fetal alcohol disability would likely have mitigated his sentence. Specifically, Sells argues that his mother's new admission that she drank occasionally FN18 while pregnant with Sells, if properly utilized, “could have led to a diagnosis of Fetal Alcohol Spectrum Disorder.” While Sells argues that the blameless nature of fetal alcohol impairment could have had a “powerful mitigating effect,” he ignores the fact that the trial evidence already established that Sells suffered from serious personality and adaptive impairments for which he bore no blame. In fact, the trial court heard testimony from both sides concerning Sells's psychological evaluations and dysfunctionality, and so it is doubtful that Sells would have derived any mitigating benefit merely by linking that diagnosis to fetal alcohol syndrome. Moreover, we have previously found that evidence of fetal alcohol syndrome-related deficiencies is not necessarily beneficial to a criminal defendant. See Brown v. Thaler, 684 F.3d 482, 499 (5th Cir.2012) (“The [fetal alcohol disability] evidence that [petitioner] claims his counsel should have presented is ‘double-edged’ because, although it might permit an inference that he is not as morally culpable for his behavior, it also might suggest that he, as a product of his environment, is likely to continue to be dangerous in the future.”).FN19
FN18. The only testimony concerning Sells's mother's drinking was her admission that she sometimes “drank screwdrivers on Friday nights” and “probably” drank other times. FN19. The Brown court reached that conclusion amid much more significant evidence of fetal alcohol syndrome; the evidence showed that the petitioner's mother drank on a “daily, or near daily basis; that she drank heavily throughout her pregnancy with Brown [and] that [she] was likely an alcoholic.” 684 F.3d at 494.
Considering the lack of mitigating evidence against the substantial evidence in aggravation, we find that Sells has not demonstrated that his new evidence would likely have resulted in a sentence less than death. See Williams v. Taylor, 529 U.S. 362, 397–98, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Because Sells cannot establish the inadequacy of his habeas counsel or actual prejudice to his sentence, he cannot establish cause for the default of his IATC claims. Accordingly, reasonable jurists would agree that Sells has failed to establish cause for his procedural default.
Sells next argues that the state court's exclusion of the administrative segregation videotape violated his Eighth and Fourteenth Amendment rights. At trial, Sells had attempted to present the videotape as evidence that the Texas prison system could successfully isolate Sells from other prisoners such that he would not pose a continuing threat. The videotape purported to show the physical facilities of an administrative segregation unit, and portrayed the prison perimeter, inmate cells, day areas, recreation areas, medical facilities, inmate transport, shackling, inmate strip searches, and inmate feeding. The prosecution objected to the videotape as irrelevant and cumulative of the testimony already offered about prison facilities. Despite the defense's offer to shorten the videotape, the court excluded the tape on the ground that it did not portray the entirety of Texas prison operations. To the extent that it was relevant, the trial court found that it was cumulative of defense testimony and any relevance was also outweighed by the danger of misleading the jury as to aspects of the prison system that might not necessarily apply to Sells. Sells reurged the error of excluding the videotape in a motion for new trial, again without success. The TCCA affirmed the trial court's decision on appeal.
AEDPA provides that habeas relief may not be granted to a state prisoner unless the state court's adjudication of the claim “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). Relying on these provisions, Sells makes three distinct arguments based on the Texas court's exclusion of the videotape: the state court's decision (1) was based on an unreasonable determination of the facts, (2) involved an unreasonable application of Fourteenth Amendment due process precedent, and (3) involved an unreasonable application of Eighth Amendment cruel and unusual punishment precedent.
Sells's first argument that the exclusion of the videotape was improper is that it was based on an “unreasonable determination of the facts in light of the evidence.” See 28 U.S.C. § 2254(d)(2). Under this standard, “It is not enough to show that a state court's decision was incorrect or erroneous. Rather, a petitioner must show that the decision was objectively unreasonable, a substantially higher threshold requiring the petitioner to show that a reasonable factfinder must conclude that the state court's determination of the facts was unreasonable.” FN20 Additionally, under 28 U.S.C. § 2254(e)(1), “a determination of a factual issue made by a State court shall be presumed to be correct,” and that presumption must be rebutted “by clear and convincing evidence.” These intersecting standards allow us to grant habeas relief based on a fact issue only if the petitioner demonstrates both an incorrect factual determination by clear and convincing evidence and that it compromised the objective reasonableness of the court's corresponding decision. See Valdez v. Cockrell, 274 F.3d 941, 951 n. 17 (5th Cir.2001). FN20. Batchelor v. Cain, 682 F.3d 400, 405 (5th Cir.2012) (quoting Blue v. Thaler, 665 F.3d 647, 654 (5th Cir.2011) (brackets and internal quotation marks omitted)).
The only factual determination challenged by Sells is the TCCA's affirmance of the finding that the prison videotape is irrelevant and potentially prejudicial. Sells contends that the videotape is directly relevant because it shows the types of precautionary measures available within the Texas prison system to preempt weapons and violence and to control inmate movements and behavior. However, Sells's contentions do little to address the reasoning of the TCCA: The videotape was not offered as information about the individual defendant or about how the individual defendant might be handled. Rather, as the judge noted, it portrayed only one aspect of an entire system and offered only general information about some procedures used in that system. That others have been controlled in the prison system or that certain procedures are in place without specifically connecting those procedures to appellant was not evidence of consequence to the jury's factual determination of whether appellant would pose a continuing threat to society. Sells, 121 S.W.3d at 766. Where we are concerned with the potential danger posed by a particular prisoner in a particular setting, evidence of prison features that may or may not be applicable to the prisoner in question is not relevant. See Tennard v. Dretke, 542 U.S. 274, 284, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004) (stating that relevance standard applicable to mitigating evidence in capital cases is a “tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable”). In any case, the TCCA could certainly have concluded that any relevance was outweighed by the misleading generalizations implicit in the tape. Accordingly, reasonable jurists would agree that the state court's determination of the facts was not unreasonable.
Sells's second argument that the exclusion of the videotape was improper is that it “involved an unreasonable application of clearly established” constitutional due process precedent. See 28 U.S.C. § 2254(d)(1). “Under § 2254(d)(1)'s ‘unreasonable application’ language, a writ may issue ‘if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.’ ” FN21 FN21. Tucker v. Johnson, 242 F.3d 617, 621 n. 5 (5th Cir.2001) (quoting Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)).
Here Sells contends that the TCCA misapplied Supreme Court precedent interpreting the due process rights of criminal defendants. Specifically, Sells argues that the state court's exclusion of relevant evidence deprived him of valuable evidence essential to the fairness of his trial. As the Supreme Court has emphasized, under a due process challenge, the relevant question is whether the trial court's error has “so infected the trial with unfairness as to make the resulting conviction [or sentence] a denial of due process.” FN22 Moreover, the due process inquiry considers the significance of the challenged evidence in the context of the entire trial. Gonzales v. Thaler, 643 F.3d 425, 430–31 (5th Cir.2011). “We have held that the Due Process Clause does not afford relief where the challenged evidence was not the principal focus at trial and the errors were not so pronounced and persistent that it permeates the entire atmosphere of the trial.” Id. at 431.FN23
FN22. Darden v. Wainwright, 477 U.S. 168, 180, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). FN23. (footnote omitted) (internal quotation marks omitted).
It is readily apparent from the lengthy record that the videotape was not the focus of Sells's sentencing hearing. Furthermore, having already concluded that the state court's decision to exclude the evidence as irrelevant was not improper, it necessarily follows that the decision did not “infect [ ] the trial with unfairness.” FN24 Because the videotape evidence had little to do with whether Sells individually posed a continuing threat to others (and therefore qualified for the death penalty in Texas), reasonable jurists would agree that it was not patently unfair to exclude it from his trial.FN25
FN24. That the videotape evidence was not relevant to Sells's defense or sentence distinguishes it from the cases he cites in passing, in which the defendant was not permitted to offer evidence probative of an issue in dispute. See, e.g., Sears v. Upton, ––– U.S. ––––, 130 S.Ct. 3259, 3263 n. 6, 177 L.Ed.2d 1025 (2010); Crane v. Kentucky, 476 U.S. 683, 690–91, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986); Gardner v. Florida, 430 U.S. 349, 362, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977). FN25. Because we reach this conclusion without taking into account the district court's discussion of Texas prison system procedures, we need not address Sells's argument that such discussion constituted improper use of judicial notice.
Sells's third argument that the exclusion of the videotape was improper is that it “involved an unreasonable application of clearly established” Eighth Amendment “cruel and unusual punishment” precedent. See 28 U.S.C. § 2254(d)(1); U.S. CONST. amend. VIII. In the context of mitigating evidence in a capital sentencing proceeding, the Supreme Court has clearly stated that the Eighth Amendment only requires the admission of relevant evidence. See Tennard, 542 U.S. at 284–85, 124 S.Ct. 2562. Relevant mitigating evidence is “evidence which tends logically to prove or disprove some fact or circumstance which a fact-finder could reasonably deem to have mitigating value.” Id. at 284, 124 S.Ct. 2562.FN26 It is only once this requirement of relevance is met that the Eighth Amendment requires that the jury be able to consider and give effect to a capital defendant's mitigating evidence. Id. at 285, 124 S.Ct. 2562.FN27
FN26. (quoting McKoy v. North Carolina, 494 U.S. 433, 440, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990)). FN27. (quoting Boyde v. California, 494 U.S. 370, 377–78, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990)).
Again, because we have already determined that the videotape depicting in a general way the Texas prison system in no way purports to document the specific restrictions to which Sells would have been subject, it is not relevant to the question of his future dangerousness. Because it is not relevant to mitigating Sells's sentence, the Eighth Amendment is not implicated.FN28 Id. Moreover, as the Supreme Court has held, as long as any mitigating evidence is within “the effective reach of the sentencer”, “states are free to guide the sentencer's consideration of mitigating evidence.” Johnson v. Texas, 509 U.S. 350, 362, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993) (internal quotation marks omitted). While the state court may have regulated the admission of the videotape due to its irrelevant and misleading nature, the allegedly mitigating evidence in the video had already been presented to the jury in the form of expert testimony on the ability of the Texas prison system to control and contain prisoners like Sells. We therefore find that reasonable jurists would agree that the TCCA's exclusion of the videotape did not deprive Sells of his Eighth Amendment rights.
FN28. We assume for purposes of this opinion that evidence relating to future dangerousness in Texas, where such a finding is necessary to impose a death sentence, is “mitigating evidence.” As the district court suggested, such evidence is arguably not mitigating because it does not reflect on the defendant's blameworthiness, culpability, character, prior record, or the circumstances of the offense.
Sells lastly argues that the district court abused its discretion in denying him funding to develop mitigating evidence that might have supported a sentence less than death. Significantly, the district court's denial of additional funding came after the district court had already provided Sells five years and $25,000 to investigate and develop his habeas claims. Despite the resources already granted to Sells, he requested an additional $60,650 and now claims that he was unable to prevail on the merits because his IATC claims remain undeveloped. Under the relevant statute, a district court “may authorize [and] order the payment of fees and expenses” for investigative, expert, or other services upon a finding that they “are reasonably necessary for the representation of the defendant.” 18 U.S.C. § 3599(f). This court construes “reasonably necessary” to mean that a petitioner must demonstrate “a substantial need” for the requested assistance. Riley v. Dretke, 362 F.3d 302, 307 (5th Cir.2004). However, “A petitioner cannot show a substantial need when his claim is procedurally barred from review.” Id. In the instant case, we have already determined that Sells is procedurally barred from raising his IATC claims in federal court because they are unexhausted and he cannot demonstrate cause and prejudice. Moreover, Sells's claims were already procedurally barred at the time the district court denied his motion. In cases like this, our precedent is clear that a habeas petitioner is not entitled to investigative funds, and the district court did not abuse its discretion in so holding.
For the reasons stated above, the district court's judgment denying additional funding is AFFIRMED and Sells's motion for a COA is DENIED.