About Phil Gommels

Phil Gommels is a criminal defense attorney in Houston, Texas. He is the founding attorney at The Law Office of Philip M. Gommels, PLLC. Phil is a veteran of the U.S. Army Reserves, and a former Harris County prosecutor. He frequently speaks on issues surrounding criminal justice and technology.

Family

I often describe the Harris County courthouse like a high school. I don’t know how big yours was, but my graduating class was around 400. At any given time there were something like 2,000 students enrolled. And, as a student, you saw the same teachers, students, and staff every day, day-in and day-out, for years.

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September 9, 2016

The courthouse is similar.

The Harris County District Attorney’s office currently employs around 300 prosecutors. About half of those can be found daily in the 38 district and county courts. Others, assigned to specialty divisions or in supervisory and administrative roles, ride the elevators every day to their offices on the 2nd, 4th, 5th, and 6th floors—mostly out of sight.

Similarly, the Harris County Criminal Lawyer’s Association (HCCLA)—Houston’s criminal defense bar organization (and the largest local defense bar in the nation)—boasts over 700 members. Some of the lawyers who specialize in criminal defense in Harris County are not members (though not many). And others are members—frequently ballyhooed as interlopers—who dabble in criminal law but are primarily practicing in family law, estate planning, or some other unrelated field. But by and large, the whole of HCCLA’s membership represents the lawyers who show up every day to 1201 Franklin and ride the elevators up to the various courts in defense of the rights of their clients.

So, you have about 1,000 lawyers, plus clerks, bailiff’s and other court staff walking through the same doors and riding the same elevators to the same courtrooms 52 weeks a year. Just like high school, there are rumors, and plenty of gossip, if you choose to partake.

Recently, I heard someone describe the courthouse differently: not like a high school, but rather like a dysfunctional family. The “dysfunctional” part grated on me as pejorative. But the “family” part rang true. Sure, there are disagreements (some heated) and gossip. But there’s also tremendous support and encouragement.

For example, a couple of months ago I needed help. I was in day two of a trial in Harris County, but on the same morning I was expected to be in court in Fort Bend County to help two clients there. I sent a quick message over HCCLA’s email listserv and within minutes a colleague had volunteered to help. He showed up in my place and reset my cases—freeing me up to be fully present in trial.

And it’s like that all the time. Three years ago, when I flew out to California to be with my father in his final days, a colleague, in one motion, referred a client to me, interviewed him on my behalf, helped the client sign a contract with me, and attended his court setting—ensuring that my practice didn’t wither while I attended to my family.

Ask almost anyone in the courthouse. Cancer. Divorce. Death of a loved one. Where a member of the family has been courageous enough to share a need, I can almost guarantee that there’s a corresponding story about the way the bar responded by stepping in to meet that need with kindness and generosity.

We’re not a perfect bunch. We all have our own individual flaws. Certainly egos abound. And we don’t always get along. But where the rubber meets the road, we step up and we help each other. Because that’s what family is about.

And I’m darn proud to be a member of this family.

Even Criminal Lawyers Tire of Violent Crime

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August 5, 2016

Early Sunday morning, at the end of a typical night of partying on Austin’s 6th street, shots rang out into the night. One person was killed and another four wounded. Maybe you heard about it. Odds are you didn’t. Last week in Houston a married couple was killed—police think by their 16-year-old boy. It made the nightly news and we all moved on.

The truth is that most of us in American society don’t think much about violent crime unless it reaches a threshold for our outrage: Newtown, Orlando, Dallas, Baton Rouge. How could we? We would live our lives in constant heartbreak for our fellow man, wouldn’t we?

If this were true of most Americans, one would think it goes double for the criminal lawyer. Like the doctor whose workplace surrounds her with death and dying, we lawyers who practice criminal law (defense and prosecution) daily ride elevators with heartbroken crime victims—and more often the suffering families of criminally accused who find themselves separated from their loved ones by long stretches of incarceration. And like doctors, many criminal lawyers develop dark senses of humor to cope. The criminal lawyers reading now have in their heads an image of the lawyers who most famously cope this way.

How could you possibly give yourself over to feeling the pain of others every day? And yet, the best lawyers I know are the ones who do. The ones who every day put on their humanity; who allow themselves to be vulnerable; who let their clients in.

We criminal defense lawyers are called sometimes to defend the innocent in these violent situations. Nothing could be much more stressful than holding the fate of an innocent person in your hands facing the potential judgement of twelve strangers. Still other times, we defend the guilty. This presents a whole other set of challenges, and it’s probably not the ones you’re thinking of.

I remember early after I left my job as a prosecutor with the Harris County District Attorney’s Office and became a criminal defense attorney; I tried a capital murder case with a more senior lawyer. Our client, 19 years old, call him Jose, was accused of shooting a homeless man in the course of an aggravated robbery. It was a bad crime to be sure. And he had done it. In fact, still high on Xanax pills, he’d confessed to the police.

Like the old Paul Harvey radio show, it was our job to tell the rest of the story. And the rest of the story was this: that when she was young, Jose’s mother had been brought by her father illegally from Mexico. He had sold Jose’s mom, essentially, into slavery to a cruel master who daily raped her. And it was as a result of one of these rapes that Jose was conceived.

Jose’s mother testified that she hated him from the day he was born. That she’d always hated him. That she told him she hated him every day of his life. Jose’s more seasoned lawyer, who I was assisting as co-counsel asked the most poignant question I’ve ever heard in trial. It’s stuck with me, and affected me indelibly.

He asked: “Can you identify one single, solitary act of love you ever showed this young man growing up?”

“No.” she replied.

No.

At age 13, Jose had become such a problem for his mother that she couldn’t control him (who could imagine why?). So she sent him back to his father to live. It was there that Jose faced physical abuse in addition to the psychological abuse he’d already endured.

At school, Jose met a girl. This girl showed him the first genuine affection he’d ever experienced. And her home was free of the abuse of his own. Unfortunately, it was also full of guns and drugs. His girlfriend’s older brother taught them both to abuse Xanax pills and to rob people for money.

It was on one of these nights of intoxication and violence that Jose’s life changed forever. He set out with his girlfriend’s .22 caliber pistol with a pink handle. As he encountered a homeless man, the trio demanded whatever he may have had of value. As he told the police in his confession, the homeless man, defending himself, bravely charged Jose. Scared and high, Jose pointed the pistol at the man’s feet and fired two shots, missing the man. Then, in an instant, Jose shot at the man’s shoulder. But as the man charged to spring at Jose, the perfect shot rattled out of his gun. The tiny bullet traveled into the man’s heart, through his lungs, and killed him nearly instantly.

Although Jose killed the man in the course of the robbery, it wasn’t a Capital Murder, as the state had charged, we argued. You see, under Texas law, Capital Murder under those circumstances requires that Jose specifically intended to kill the man. But even his confession indicates that Jose didn’t mean to kill the man. He was armed and scared. He’d started a robbery and found himself terrified. He’d fired warning shots and finally an attempt to wound the man. No question he was a murderer. Just not a Capital Murderer.

In case you’re wondering, the jury convicted Jose of murder and sentenced him to life in prison. Truthfully, it’s the best we were hoping for. He’ll have the chance now, if he shows promise of peacefulness, to leave prison on parole before he’s 50.

When I think about these violent crimes and the people who perpetrated them, I often think about Jose. I think about how every night as we’d walk with him and the bailiff back into his jail cell my co-counsel would smile and in a gravely voice of a man who’d smoked cigarettes since childhood would tell Jose, “G’night man. I love you.” And Jose would smile from ear to ear like he’d never heard those words before. Because truth-be-told, he probably hadn’t.

I think about Jose when I think about those other killers because before I met Jose, to me he would have been a demon: the kind of awful person who shoots a homeless man down in cold blood. He would have been my enemy. If I had ever given him a second thought. He might have just been another news story I missed.

But as I reflect tonight on the shooting late Saturday night in Austin, and last week here in Houston—on Jose, and all of the killings that have lately grabbed the national headlines—I’m heartbroken. While keeping it just together enough to do my job every day, I try to let my heart be just tender enough to mourn the deaths of those killed. I even try to remember the humanity of the perpetrators who, like Jose, have their own story of how they came to do the awful things they’ve done. That’s what the lawyers who I respect most do too.

July 4th

flags1This Fourth of July members of the Houston criminal defense bar met on the steps of the Harris County courthouse to read the American Declaration of Independence. The tradition began seven years ago. I wasn’t there, but I imagine that it consisted of a few lawyers reading the document to passers by. Over the years, the tradition has grown. And this year, for the first time in history, the reading took place in every county in the state of Texas. That’s an incredible accomplishment.

What struck me fresh this year in the Declaration were a pair of grievances against the British king:

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation
For Quartering large bodies of armed troops among us
For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States

and

For depriving us in many cases, of the benefits of Trial by Jury.

Put succinctly, the government was acquitting its own agents in kangaroo courts when they killed innocent citizens. And on the other hand, when citizens were accused of crimes, they were getting steamrolled in court—not afforded rights we consider basic, like the right to a trial by a jury of our peers.

The other day a close friend of mine had his sister in town for the holiday. When she found out that I was a criminal defense lawyer, she had a lot of questions. Mostly, she had the same questions most people have when they find out what I do for a living. Basically the questions go like this: “When you know they’re guilty, do you defend them anyway? How do you do that?” Underneath the questions, I often feel a subtext of “How do you sleep at night?” or “How do you live with yourself.” This particular person asked, “Do you pray before you take cases?” What I heard was, “Do you have a soul?”

The truth is I do pray. A lot. I pray for my clients. I pray with my clients. I pray for the strength, wisdom, and perseverance to carry on in this lonely profession.

See, my friend’s sister and these lines in the Declaration remind me of one of the great founding father’s of our Republic: John Adams. Before he was president—before he signed the Declaration—Adams found himself defending a group of British soldiers who had killed five innocent Americans in what became known as the Boston Massacre. Understandably, he took a lot of heat for it. The whole undertaking was incredibly isolating for him.

But what Adams, the prosecution, and the judge demonstrated in the trial of those British soldiers was uniquely American. Even as they had been oppressed, beat down, and murdered by thugs wielding weapons under the authority of government—even as they had repeatedly seen staged trials leading to acquittals of government murderers—they afforded the accused fair trials. They risked that the system might get it wrong. Perhaps the guilty may go free in protecting the rights of the innocent. Adams and the colonists understood what we often forget: protecting the rights of the guilty protects us all.

Adams put it like this: “It is more important that innocence be protected than it is that guilt be punished, for guilt and crimes are so frequent in this world that they cannot all be punished. But if innocence itself is brought to the bar and condemned, perhaps to die, then the citizen will say, ‘whether I do good or whether I do evil is immaterial, for innocence itself is no protection,’ and if such an idea as that were to take hold in the mind of the citizen that would be the end of security whatsoever.”

So this Fourth of July, if you get a chance, please consider taking a look at Declaration of Independence. It is every bit as relevant today as it was 240 years ago. The rights our founders left us are our inheritance, and we owe them our gratitude. Happy Fourth!

A Parents’ Guide to Criminal Charges

Summer is upon us. Kids are out of school. The weather is heating up (if Houston doesn’t end up a lost city in the tradition of Atlantis). And juvenile and criminal lawyers know that one thing is inevitable: kids are fixin’ to get into trouble. The parents have already begun pouring into my office at their wits’ end, wondering if Junior has just ruined his shot at a college education or a good job. If you find yourself among the new adult fraternity of custodian-of-an-alleged-criminal, here are four things that you should know:

  1. Don’t panic. This is normal.

As parents, we want the best for our children. When we see them making bad decisions, it’s easy to lose perspective. Suddenly our own youthful indiscretions fade and we’re ready to line up beside the prosecutor to let our not-so-little-one face the consequences of his actions. It’s easy to forget what we all know intuitively, and what science confirms: that until age 25 the part of our brain that makes good decisions isn’t fully developed yet. So we mess up. The offenses I see most often are shoplifting, fights (assault), marijuana (and other drug) possession, and driving while intoxicated (DWI).

As a first step, please, take a deep breath and do your best to see this situation objectively. As you’ll see, this could be a pivotal moment in your child’s life. And how you handle it (and the legal result) very well could define your son or daughter’s opportunities in the future.

  1. Not all children are juveniles

In Texas, the age of majority for criminal conduct is 17. That’s not the case in every state and when I told a colleague in another state that recently, it was very hard for him to fathom. Truly, it yields some very odd results. For example, your son could be part of a group of knucklehead kids who peer pressure each other to throw a rock through a convenience store window and steal some Little Debbie snack cakes (Trust me, guys. That’s a thing). Say they’re all between their sophomore and junior year of high school. They’ll all be charged with burglary of a building: a state jail felony.

If yours is the 16 year old, he’ll be charged as a juvenile. Even if he’s found criminally responsible, there will be some very significant protections for his criminal records. But if he’s 17, he’ll be charged as an adult with a felony. Any resolution short of a dismissal of the charges or a win at trial will work significant havoc on your young person’s criminal record—even if he’s not actually convicted.

  1. Convictions are permanent

Along those lines, even if your child is charged with a crime, there are many potential outcomes outside of a conviction. The most important thing a lawyer can do is try to avoid a conviction. In Texas, there is no such thing as an expunction for a conviction. An expunction is a permanent deletion—a shredding—of a record. The remedy is available in Texas under certain circumstances—a not guilty verdict, for example—but not for a conviction. Generally speaking, a conviction (felony or misdemeanor) is a life sentence. It does not go away. (There are some exceptions, such as a post conviction writ of habeas corpus or a governor’s pardon, but suffice it to say that any post-conviction remedy is rare and shouldn’t be counted on).

The moral of all that is to say that no matter how much trouble Junior is in at home, letting him blow his chances for a decent job, a professional license, or a college education probably isn’t the way you want to send that message. And the only time to fight those charges is now.

Even with juvenile charges, under certain circumstances, certain punishments can be used against your child for some purposes. The best thing to do is to hire a competent lawyer and aggressively fight the charges.

  1. Pretrial detention is not helpful

For a variety of reasons, pretrial detention is ordinarily a bad thing. For adults (remember, anyone 17 or older), the criminally accused are held in jail technically, only to assure that they’ll make it to court. They can be released from jail under three different circumstances indicating that they’ll return to face their charges: 1) a cash bond; 2) a surety bond; and 3) a pretrial release bond (also called a personal recognizance bond). A cash bond is an amount of money, paid in full, to the court. The money is collateral to insure appearance. If Junior makes it to every court setting without fail, when the charges are resolved, the whole sum will be returned to whoever paid it on his behalf. A surety bond is a variation on this theme. A portion of the amount (customarily 10%) can be paid to a surety bonding company (go downtown and you can’t miss them—they’re everywhere). The bonding company accepts their payment in exchange for taking on the risk that Junior may not show. If he doesn’t, either they’re on the hook for the full amount or they make sure he’s found. There’s more to it that that, but that’s the basic picture: you pay 10%, Junior gets out, you don’t get the money back. A pretrial bond is a “free” bond (Actually the courts usually charge 3% of the total amount in order to pay fees of pretrial supervision) where Junior is released essentially on his own promise to show back up—or “recognizance.”

The process is totally different for kids under 17. If you weren’t called right away and asked to pick Junior up, odds are the judge thinks Junior is a danger or menace and/or they don’t think very much of his home life. Children are held pretrial in a detention center—technically not a jail but just like a jail—with their peers. And they’re entitled to a hearing to consider their release within 2 days initially, and every ten days after that. The first job of a diligent lawyer is to secure your child’s release.

Studies show that the longer pretrial incarceration continues, the more likely a person is to find him or herself subsequently locked up. There are lots of theories about why that is. It could be that during confinement a person finds himself surrounded by anti-social peers. Or that he falls further behind in school, misses positive opportunities, loses his job, etc.—all negative influences which can be hard to overcome.

Additionally, juveniles and adults find themselves in much worse bargaining positions when they are incarcerated than they otherwise would if free. If, for example, Junior is charged with marijuana possession and is incarcerated, his number one priority is to get out of jail. If offered a plea agreement that effectuates that goal, you can bet he’ll take it—even at the expense of his permanent criminal record. On the other hand, if he’s out on bond or released from detention, suddenly he’s better able to share the lawyer’s goal of protecting his criminal record.

I say all of that fully recognizing that very often criminal charges come against children when parents are already at the end of their ropes. For me, being a lawyer sometimes feels like it should have required a degree in social work. The waters are difficult to navigate, but a good juvenile lawyer should be able to help you find a way to both protect your child’s record and get at the root of the behavior that’s landed him in this serious trouble. Even having said that, at the end of the day, everyone has to come to peace with the fact that only Junior has control over Junior’s actions, and the one person most capable of helping or torpedoing his case is Junior.

So with all of that, remember this summer to keep a little perspective. Grab a slice of watermelon, pop in your old tape of “Fast Times at Ridgemont High” or “Ferris Bueller’s Day Off” and consider what legal trouble those kids would have found themselves in had the police caught up to them. If you can bear it, perhaps even meditate on the consequences you were spared for your own high school hijinks. Then, when you’re feeling a little more one with your inner teenager, get on your Google machine and call around for a good lawyer. You’ll thank yourself later. Trust me.

Student, Father Jailed for Missing Four Midnight Phone Calls

The last time Hillary Clinton ran for President, in 2008, I remember clearly one of the ads that she ran. It was meant to communicate that she was the candidate who was ready to handle serious international crises. It featured sweeping shots of sleeping children. While a phone rings in the background, the narrator tells us it’s 3am and the phone is ringing in the White House. There’s a crisis. And it asks us, “Who do you want answering that phone call?”

 

I remember watching the ad. It was the first time that it had really occurred to me that the job of President truly was a 24-hour-day gig. I thought to myself, “I sleep with my phone in the other room. On vibrate. I can’t be expected to wake up in the middle of the night if the phone rings. Besides, I’m a heavy sleeper.  Who would be calling me at that hour anyway? I don’t know if I’d even wake up, let alone answer it even if I heard the phone ring.

 

It never occurred to me until this week that a person might go to jail for missing a few phone calls in the middle of the night.

 

But that’s exactly what happened to one of my clients this week. He’s a blue collar worker and a father of a small child. At night he goes to school to make a better life for himself and his son. When he was charged with DWI, the judge granted him a pretrial release bond—a frequently ballyhooed rarity in Harris County. As a condition of the release, the judge ordered my client to have a landline installed in his house, and to receive phone calls from Harris County Pretrial Services every day after his 7pm curfew.

 

Like most Americans these days, he didn’t need a home phone. But he paid to have one installed anyway, because the judge told him to and his freedom depended on it. And every day after his release, he picked up the phone when pretrial services called. Until a couple of weeks ago.

 

One night, pretrial services called him at 1:04am, and he missed the call. The next night they called at eight minutes to 1am, and he missed that call too, but he called back five minutes later. He missed the calls every night for the next three nights—each call coming in between 11:10pm and 1:40am. And every night for the next two weeks, he caught the phone every time they called.

 

So it came as a shock to us both when, last Monday, my client was taken into custody as he showed up to meet with his pretrial services officer between court settings. I only found out that he’d been taken into custody because I happened to be in the court and filing something on his case that day. The judge had revoked my client’s personal bond without notifying me or giving my client an opportunity to be heard.

 

The Texas Code of Criminal procedure says:

 

“[A] personal bond may not be revoked by the judge . . . except for good cause shown.”

(In case you are wondering, that means after a hearing and evidence that amounts to a really good reason.)

 

I asked the judge for a chance to be heard, and she acquiesced. In her presence, I elicited testimony from a pretrial services officer of all the times my client had answered the phone or called right back, and that these four midnight phone calls were the only calls they alleged he had missed.  Still, she persisted in revoking my client’s bond, despite my pleadings that he could lose his job, get kicked out of school, or both.

 

Afterwards, I asked the representative from pretrial services whether these early morning calls, and revocations for missing them were common.  He told me that recently, pretrial services has been making daily phone calls to individuals they supervise in the middle of the night during down time as they work round-the-clock intake for new cases. And, he said, recently he can recall four or five cases where they’ve suggested to judges to revoke pretrial release bonds based on missed middle-of-the-night phone calls.

 

So the next time you think about that 3am call, and you’re wondering who you trust to pick up the phone, if you’re on pretrial supervision, the answer should be, “yourself.”  If not, you could go to jail.