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Voir Dire in Criminal Trial and Preserving Error
Section 10 of Article I of the Texas Bill of Rights guarantees a criminal defendant the right to an impartial jury.
Selecting an impartial jury is no minor feat. All prospective jurors who enter a courtroom for possible criminal jury duty bring with them personal biases, preconceived opinions, and a host of negative attitudes about crime and criminals. The prosecution naturally wants to select a jury prone to convict, while the defense seeks a jury receptive to impartial decision-making.
Selecting a jury in a criminal trial is known as voir dire. Many prosecutors and criminal defense attorneys consider it the most critical trial phase. Under Texas’ Government Code, Section 62.0132, prospective jurors summoned for jury service are required to fill out a “Juror Questionnaire” that provides the court and the counsels of record basic personal and background information about the prospective juror.
Prospective jurors are then assembled into a venire panel and questioned to determine their qualifications to serve on a jury. The judge and the attorneys then ask the potential jurors questions designed to assess their suitability for service. The process is more accurately described as deselection, as members are struck from the panel for various reasons, and those remaining make up the jury.
Either party may move to strike prospective jurors from the panel for cause or by using a peremptory challenge.
Amoung a host of other reasons, a challenge for cause can be based on a prospective juror’s disqualification because they have a bias in favor or against the defendant, a conclusion as to the defendant’s guilt or innocence, or have a bias or prejudice against any of the law applicable to the case upon which the defense is entitled to rely. For example, a juror who believes a defendant’s failure to testify constitutes an admission of guilt, in violation of the Fifth Amendment, is subject to challenge for cause.
Both the prosecution and the defense also have what are called ten (10) peremptory challenges—a challenge that allows each side to strike a prospective juror from service without explanation.
Defense attorneys must be prepared for voir dire. The very purpose of voir dire for the defense is to identify prospective jurors who are unfair and biased and, therefore, incapable of rendering an impartial verdict. The American Bar Association, the Texas State Bar, reputable criminal defense attorneys, and legal scholars have all identified “tips” or “suggestions” that the defense can and should use in questioning prospective jurors. A synopsis of these includes but is not limited to the following:
- Establish some background with the juror: their occupations, media viewing habits, educational background, and socioeconomic status.
- Explore juror’s personal experiences: as victims of a crime, having family members who have been victimized by crime, or as participants in relevant litigation.
- Create discussion: get jurors talking about personal beliefs, such as the value of truth and honesty, their opinions towards crime, media coverage, and their feelings about certain kinds of criminal conduct.
- Ask open-ended questions: “why” questions or questions that seek personal views over questions that solicit a “yes” or “no” response.
- Watch, listen, and pay attention: pay close attention to everything the jury panel does. For example, how members interact with other members, their body language, manner of dress, and any reading material in their hands.
- Study juror vibes: some jurors will give defense counsel a bad vibe, just as some will generate a good vibe. Keep the bad vibe jurors in mind for a possible challenge for cause, and if cause does not exist, for a peremptory challenge.
- Talk to jurors individually: Encourage jurors to express themselves without being judgmental and listen intently to their answers. Communicate with the juror that you are genuinely interested in them as a person and appreciate their willingness to serve.
- Look for probable juror leaders: Jurors who, by job status or verbal skills or air of self-confidence, seem to have a “take charge” personality. These potential leaders should be pressed about individual biases and strongly held opinions.
The key to successful voir dire is preparation, attitude, and understanding of human behavior. Even with these precautions taken, there will be times when questioning a prospective juror when the person will make remarks or comments with the real potential to infect the entire jury panel with prejudice against a particular defendant. When this situation arises, the defense counsel may have no choice except to make a motion to the court to quash the entire jury panel.
Preserving error based upon a trial courts refusal to grant motion to strike for cause requires defense counsel to make the following showing:
(1) the trial court overruled a valid challenge for cause; (2) appellant exhausted his number of peremptory challenges; (3) one or more disqualified jurors sat in the case, and (4) the trial court denied appellant’s request for additional peremptory challenges or would have done so had they been requested.
Preserving error for appeal based upon a failed challenge for cause is vitally important.
The case of Juan Arnulfo Villegas illustrates the difficulty in preserving challenges for cause regarding individual jurors (and efforts to quash the entire panel). Villegas was being tried in a San Antonio court for three counts of indecency with a child when the prosecutor asked during voir dire, “What does a person look like who has committed child abuse? Sexual child abuse? What does that person look like? Anyone?”
Two prospective jurors answered “depressed” and “withdrawn” before one juror stood up and blurted out, “Something like him,” pointing toward the defendant. Defense counsel objected that this tainted the entire panel, and following a bench conference, the trial judge held the prospective juror in contempt and had him handcuffed and escorted from the courtroom. The trial judge then overruled the objection.
Following this extraordinary event, another prospective juror said for the entire panel to hear that “if they look guilty, they are guilty … that’s just it, so I don’t think I would be, you know, fair to the defendant.”
Defense counsel objected again, requesting a mistrial premised on the argument that the remarks had prejudiced the entire jury panel. The trial judge overruled this objection as well.
Villegas was convicted. He appealed to the Fourth Court of Appeals in San Antonio. He raised the issue of whether these inflammatory remarks infected the entire jury panel. The State argued that the point was not properly preserved because the defense did not request an instruction from the judge to cure the error by instructing the panel to disregard the inflammatory remarks. The appeals court did not directly answer these questions. Instead, the court ducked, finding:
“Thus, the issue is whether the remarks were so emotionally inflammatory that the seated jurors were influenced to the prejudice of the defendant.
The record is simply devoid of evidence that any juror on the panel was prejudiced or that any other juror held a similar opinion as either of the prospective jurors who made the statements.”
“The fact that venire member 45 was handcuffed and led away from the courtroom in contempt clearly indicated the court’s displeasure with the opinion expressed by venire member 45. Even without an instruction, the other jurors could have reasonably drawn on their own experiences to know that individuals who commit child abuse do not all look alike. Another venire member responded that a child abuser would look ‘normal’ immediately before venire member 45 made his comment. Furthermore, it does not seem probable that remaining members of the panel would have been so persuaded by the panelists’ statements to make them incapable of drawing their own conclusions.”
That is why preparation for voir dire is so essential. A defense attorney can never predict what will be said by a potential juror. Could defense counsel in Villegas have done anything differently?
Further questioning of the panel to lay the foundation that the entire panel had been prejudiced by the comments would have been necessary to sway the Court of Appeals.
The Villegas case is a prime example of the bias and personal baggage prospective jurors bring into the courtroom. It is vital to discuss this reality with prospective jurors and get a commitment from them that they will leave those biases and experiences outside the courtroom if selected to perform jury duty. It is a difficult task, but one that must be done head-on and without apology.
Take the first step toward protecting your freedom by contacting us now
Testimonials
John T. Floyd Law Firm
3730 Kirby Drive # 750, Houston
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I had wonderful experience with this law firm. They were so helpful and knowledgeable of the process.my case was dismissed because of Mr John T Floyd,thank you for everything .
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I had a great experience with this Law Firm, the kind staff helped me locate a Lawyer even though they were unable to take my case.
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I can tell that Jone is an excellent attorney in Houston. Personally, he is a great man. In addition to great service and amazing results. Recommended
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I’ve never been one to write reviews but this time I couldn’t pass up the opportunity to say something. I had some serious legal questions I needed answers to concerning Texas laws. … More Being I’m from another state, I found and reached out to Attorney John Floyd for the answers. Mr Floyd listened to to my requests and told me what he need from me and went out of his way to get me the answers. Very polite, straightforward and professional, I can’t thank him enough for all he’s done. Whatever your legal case may be, I wouldn’t hesitate to recommend Mr Floyd.
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Mr. Floyd is both ethical and loyal to his clients; two qualities that are hard to find specially in lawyers. I'd definitely recommend him to anyone.Positive
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Mr. John was very helpful and truly was the reason why my case was dismissed. Thank you so much Mr. John I truly recommend everyone in need to work with him.
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John has given Excellent service and have been very friendly and extremely helpful to us. I highly recommend this law firm
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This law firm is diligent, responsive and succeeded in getting my case dismissed. 10/10 would recommend.
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Very helpful, knowledgeable and honest.
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John is an amazing person and lawyer who is actually very understanding of how anxious I got and although it was hard to reach him sometimes because of his schedule, but never worry … More he is on top of things. He is very organized, very smart. I had the experience to go through a trial with him, and he always plans ahead well and is actually open and receptive to any ideas and comments I had and he was quick to decide which is right to use at the moment. I really appreciated working with him and Chris. Great lawyers and great people. As I was reminded by John, I am adding that the Jury reached a not guilty decision on the original charge and on a lesser charge in just 25 minutes. It took more time to write the charge and instructions for the jury than it took them to reach a decision.
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Highly recommend John T Floyd law firm, great response time and demeanor.I was researching an on-going criminal case, when I found an informative article written by John Floyd (about … More the perils of expert testimony). I called his office, and was very pleased to receive a timely call back. Not only was Mr. Floyd candid and helpful, but he had the kindest demeanor of any attorney that I've dealt with. I am so glad to have found this firm.
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Although I am not a client, John Floyd contacted me the same day I sent an email requesting advice, answered my questions and even when further to assist with my issue and communicated … More with me the next day. A true credit to his profession and I can only imagine how well he provides services to his actual clients!
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I give Mr. Floyd 10 Stars if they were available so I'm giving him five that's all that's available. The first time I left a message for him it was on a Friday after … More 5 p.m. and within 15 minutes he called me back I told him I needed to buy a lotto ticket because that has never happened. I knew from our chat and him calling me back that he was different from any attorney I've tried to talk to left messages never got called back they didn't even know what I needed and neither did Mr. Floyd but he did call me back. I was very interested in meeting with mr. Floyd about my case because I felt he was very transparent honest and genuine. If you've ever dealt with attorneys they don't have those traits but Mr. Floyd does. He was very honest with me told me what I could and could not do with my case. He is not egotistical he's very compassionate and he actually reads the documents you sent him unbelievable that's never happened. He will be the only lawyer I refer to anyone that needs his expertise. If you're in need of a criminal defense attorney please give John T Floyd a call you will not be disappointed.
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Mr John is a great human being and a very knowledgeable attorney. He has always called me back promptly,advised me very clearly and never rushed our conversation. i was wrongfully accused … More and Mr John had my case DISMISSED!! on the day of trial after fighting for me for two years. I am very thankful to the John T. Floyd Law Firm. You will not go wrong with John. Mr John you deserve way more then 5 stars.Thank youShaikh.
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John Floyd Law Firm is highly recommended for your legal needs. He and his staff are highly professional in every aspect. Easy and comfortable feeling talking with him, and he understands … More your needs and explains your legal advice in a way you can understand. Enough just cant be said. Thank You Sir.Positive
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John was kind enough to assist me with legal advise on my firearm gun rights restoration. I highly recommend him and his firm. Very professional and knowledgeable. If I need assistance … More in the future I will definitely go back to him.
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What I liked the most was that he actually returned my phone after leaving a message unlike pretty much everyone else I called prior. He listened and answered my question with the best … More advice that would benefit me the most. I was actually lost from moving to Texas from a different state we’re laws vary and he pointed me toward the right direction to get a understanding of if I need to do business with him now or after I contact a lawyer in my home state.
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John T Floyd handled my sons case & got a dismissal for us! He is great to work with, gets back to you promptly & knows what he’s doing. Definitely one of the best we have had … More to deal with!Positive
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John is honestly the best! The whole team is. He answered me in a timely manner and helped me when my friend was going through a situation in Houston, Texas as an inmate. He was so … More thorough, honest, and without charging me sent me so much information because I was out of the loop. He never once tried to take you for your money, he did all that he could to. help me and I can't thank him enough.
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I have used John on two occasions and found him to have full knowledge of Texas law, diligent, creative in plan, and aggressive in defense. He is the best criminal defense attorney … More in the State of Texas. No reason to look elsewhere.
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I have been calling to get some legal advice pertaining to gun rights. A few legal offices would not even take my call because quote " your not a client and Im losing money. … More I I called John T. Floyd Law Firm and they were not only able to answer my question, but gave great detail information, and further elaborated on their answer. I hope I do not have to use them in the future, but if I do need to, they will be my first call.
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Great lawyer! Needed some advice and gave me a Consultation, and advice for steps to take, without any hassle l, Was a honest guy and actually wanted to help me and not just take my … More money! Highly recommend!!Positive
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Attorney Floyd replied very timely to my inquiry and he provided practical advice. I will not hesitate to contact him in the future if I need additional legal counsel.
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Highly recommend, down to earth lawyer. Talked to me about my legal issues without being super money hungry and genuinely wanted to help me with my legal problems. 5 stars ⭐️.
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Very knowledgeable and professional. I called and left a message Friday morning and before end of business that day I received a call back.Positive
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Very helpful highly recommended for any Question / case will definitely keep he's name and number for any other legal advice
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Excellent service and a lawyer that doesn't lie. He does what he says. JW recommends him.
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One of the best services Ive used in awhile. Thank you for all the help and answers. You got my life back. Thank youPositive
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Im impressed. This guy was polite and professional and most important...he listened.
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Good experience and very good lawyer
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It was a pleasure speaking with John. He is knowledgeable and has a true desire to help the people of society. I turned to him for some guidance of a long-standing issue. He never … More rushed our conversation and went out of his way to look into the details to provide the right answer as well as assist me anyway he could. Thank you for our conversations and I wish your and your firm the best. If you need a lawyer, John Floyd is your guy!
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John represented me in court for roughly 2 years. I won't (and shouldn't) get into any serious details, but let me tell you that I couldn't have chosen anyone better. … More Seriously.Every appearance in court I felt very comfortable. The judge and DA's had a high regard for his reputation. There is a time I recall where simply his presence greatly impacted the court's interpretation of my case and persons. We were in front of the stand and the judge could not stop talking about John's prestige and past accomplishments and how that took in relation to my case. I kept silent in front of the judge, but I observed then that John's popularity and reputation within the court had already given me a better looking rapport with the judge. Let me tell you, I never had more confidence then, knowing that the judge held him in such high regard.This is not to mention how personable John is. I'll be honest that during the stress of court, sharing a laugh with your lawyer helps a lot. This may sound a lot, but I really appreciated the relationship we had then. This is also not to mention that he was able to deal very well with any DA that rotated over the years. Seriously, John was great, prompt with information and very hands on with my case. I had great peace those 2 years until everything wrapped up.If you're looking for a lawyer, I highly, HIGHLY recommend the John T. Floyd Law Firm. He IS nationally renowned, you know. He'll get the job done to the utmost confidence. He's very experienced and has a great record to boot. I am glad to have had him represent me in court and trust me that I never thought I'd ever say that (and whoever does?). We explored every avenue of victory together and I personally enjoyed the experience, despite the seriousness of the accusation.If you have a case that needs to be represented at the highest levels, choose John T. Floyd. He's a good man and very good at what he does. Him and his team has the experience you need to make the best decisions and options to get the best outcome for your case. We got the best result I could possibly ask for, thank God.Seriously. Hire John. He knows what he's doing.Seriously.
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One of the few honest lawyers I have ever talked to. His complimentary consultation was knowledgeable and thorough. He knew exactly what the issue was and how to handle it. His candid … More appraisal of the situation and how to proceed saved me thousands of dollars in legal fees. If you have a case requiring expertise in John's area of practice, look no further. Hire this man!
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I had the opportunity to read an article that Mr. Floyd wrote and it was very interesting. I called him about the article and advice concerning a similar situation. He not only gave … More me excellent advice, he pointed out not just what I wanted to hear but what I needed to hear concerning my situation. The Good, The Bad and The ugly in a manner or speaking. He spoke with an open and honest heart with information to help me and not just to get a client.
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If you are in trouble and need a lawyer, contact the John T. Floyd law firm. Some of the best lawyers in Texas work there! Understanding and helpful lawyers and staff that will do all … More they can to help you 😊
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He gave me one of the most honest answers I have received in a very long time about any issue I was having with anything. Legal or not legal. I highly recommend giving him a call and … More will be referring him to friends and family if they have any issues in the future.Positive
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He took time out of his day to answer my legal questions and didn’t even charge me. I would definitely recommend him to you.
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Gave free consultation on getting gun rights back. He truly cares about gun rights and getting you the help you deserve. 100% worth a callPositive
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Very professional, great quality work, and very friendly and helpful. Overall, their service is phenomenal. I recommend Mr. Floyd to anyone.
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Mr. Floyd took the time to explain his experience with the law to me in layman's terms. Definitely give him a call.Positive
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He was honest , knowledgeable , and professional about what we talked about. Most lawyers are just about the money , but not john.Positive
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He was very truthful and honest with us very great man I would recommend him and we would use him again
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Very professional honest and works hard currently working my husband’s appeal I pray he does his best workPositive
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I contacted John T. Floyd Law firm and I was very satisfied with service extremely helpful and friendly thank you Mr. FloydPositive
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This law frim was informative,great response time ,and the attorney called back not some secretary or legal assistant thank u guys for all your help wish it was more like youPositive … More
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I would highly recommend Mr Floyd. He was very helpful and knowledge with a legal question I had.Positive
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He explained my case better then any other lawyerPositive
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Very informative
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Had the pleasure speaking with John Floyd on a personal matter, he was very responsive, nothing but exceptional, and he really cares about you with sincerity and most importantly knows … More what is he talking about! No games or bs, his approach to my situation even though I knew it was probably way smaller then what he normally takes on, he was extremely helpful and didn't care about the size of the matter like other attorneys do. He really looked out for my best interests. You can tell he has decades of experience doing what he does just by chatting with him. I would highly recommend him.
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Words can’t describe how grateful I am for working with John, he went above and beyond my expectation. I was wrongly accused and hired many lawyers before hiring John Floyd but they … More all disappointed me, I had lost hope until a friend of mine referred me to John. From the start he had my best interest in mind and gave helpful advice, he explained the process and guided me. He put more work and time than all my previous lawyers that cost me thousands of dollars. He was constantly communicating with court and defended me more than all lawyer i had hired before him. Don’t waste your time and money like I did, believe me when I say I hired countless lawyers before him and no one came close to John. I’m forever thankful for him for fighting for my innocence and getting my case dismissed. Thank you so much🙏🏼🙏🏼
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I called Mr Floyd and left a message, with in the hour I received a call back with much more information then I could have ever expected. Mr Floyd was very informative on every question … More I had for him. He seemed like he cared, instead of like most attorneys that you talk to that are just out for a quick buck. If you want someone that is going to shoot strait with you, and has your best interest in hand, this is you guy. This was the best experience that I have ever had with an lawyer.
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I can state with confidence that Mr. Floyd and his team are the most competent and professional lawyers one can hope for. My case was quite complex and I admit that as a law student … More I was not the most patient client. Mr. Floyd did a phenomenal job of managing the bench, prosecution and myself! The result was above expectation, and I will never hesitate to recommend this firm regardless of the caliber of the case at issue.
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It was a pleasure working with Mr. Floyd. I contacted him regarding a legal matter and he was extremely knowledgeable about the law, and responded in a timely manner. I appreciated … More the fact I did not feel rushed, and he made sure he thoroughly answered all questions I had. I would highly recommend him!Positive
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Spoke with John Floyd about a 45 year old criminal case I was involved in. I had very little information about the case and John helped me search what records were available and gave … More me guidance to find more information. He was very professional and took his time helping me. I may need to hire a lawyer on this case and Mr. Floyd will be the man.Thanks John.
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Very professional and straight forward. He's not going to waste your time or money. Very knowledgeable in a large range of possible matters one could face living in these days … More and times. If ever you need legal assistance, this is who I would suggest. Awesome!Positive
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I called about some legal questions I needed to get clarified and John was able to give me clarification and sound advice. I will definitely contact John for all future legal questions … More and issues.Thank you John!Positive
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Knows his stuff and well respected with DA and judges. I have referred him a couple times and every client has been satisfied
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John is beyond knowledgeable! If I decide to pursue my case any further I would only have him represent me.
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What a great attorney, this guy really took time out of his day to answer my questions and explain my case to me. Very grateful, thank you so muchPositive
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Absolutely a very professional lawyer. Very well read in the current law and more than willing to help if needed.
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Mr. John he’s a professional he knows what he’s doing and he’s patient they recommend Him stronglyPositive
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Great service, very knowledgable and happy to help with any questions I had
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Quick to action and helpful and knowledgeable with entertainment industry based issues!
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Responded on a holiday week. Very knowledgeable and reassuring.
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Very professional
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I want to thank John T. Floyd and all of his team. He is the best lawyer who cares aboutHis clients and fights really hard to get the best outcome. He is a fighter and he is awesome!!!I … More recommend if any one needs criminal defense , he is the BEST. We had a really serious caseAnd we are very thankful for the outcome. Thank you John!!!!! God bless you!!!!!!
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The attorneys at John T. Floyd Law Firm work diligently to achieve the best possible results for their clients. They are caring and knowledgeable professionals. Their expertise in the … More law and their experience as trial attorneys makes them the right choice as a defense attorney. I recommend this law firm highly.
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From beginning to end this firm handled my case like the top tier professionals they are. I would not trust ANYONE else with my legal needs after having less than stellar experiences … More with other teams. Thank you Floyd!!!
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I really felt like the team cared about my case and am super satisfied with the outcome. Would not recommend anyone else!
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These guys do amazing work and have phenomenal service! Hands down best in the Houston area!!
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John and Chris are true professionals! Love those guys like family!
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Mr. Floyd and his team are very knowledgeable, informative, and helpful.
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A team you can depend on to stand up and fight for you to prove the truth the whole truth!
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Mr. John T. Floyd represented me.I couldn't be happier with the outcome he managed to achieve on an VERY Important case that was dismissed the day of Trial. He is patient & … More very knowledgeable of the legal system. I HIGHLY recommend him to anyone in need of a lawyer!John, I am forever grateful & satisfied with the effort you put forth & all you did for me. Thank you isn't enough!God bless you & your family!
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The John T. Floyd Law Firm assisted me, and I can tell you that the attorney took the time to answer my questions, and I didn't feel rushed or dismissed as I have experienced in … More the past with attorneys. The attorney was very nice and extremely knowledgeable. Initial impressions and continued excellent customer service are big factors for me and as such I would highly recommend this firm.
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I thank you for your efforts to help Felons regain their Civil rights, and for the information on possession , I am A convicted Felon, no violent history. I am an expert shot, I am … More 76 yoa, and very concerned about the present lake of Security in our State and Country. God Bless and Prosper you in your efforts, Your friend, Sonny Bivens
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I really appreciated both Chris and John helping with my legal questions and concerns. Both are good guys and I would not hesitate to recommend them.
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Extremely helpful!!! Helping me understand the law.
John T. Floyd is Board Certified in Criminal Law By the Texas Board of Legal Specialization
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