Affirmed and Opinion filed June 21, 2012.

In The

Fourteenth Court of Appeals 

NO. 14-11-00513-CR

BRIAN WALKER SIMON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 338th District Court

Harris County, Texas

Trial Court Cause No. 1263348

O P I N I O N

In this appeal we consider the propriety of a trial court’s denial of a mid-trial 

request to poll empanelled jury members about their possible exposure to media coverage 

of the case. In a single issue appellant Brian Walker Simon asserts that the trial court 
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erred in failing to make this inquiry. He urges this court to reverse his conviction for

criminal trespass and remand for a new trial. We affirm.

BACKGROUND

Appellant was charged by indictment with the felony offense of burglary of a 

building with intent to commit theft. The charges stemmed from an intrusion into an

animal shelter. The intruder cut a hole in a fence surrounding the shelter, entered the 

building, and absconded with a computer. The incident occurred in the middle of the 

night, while the shelter was closed. Appellant pleaded ―not guilty‖ to the charged 

offense. A jury trial followed. 

According to the record, in the months before the intrusion, appellant had tried to 

obtain information from the animal shelter about his dog Nino, a Chihuahua. Appellant 

had accused the shelter of euthanizing the dog. During these encounters, appellant 

interacted with shelter employees. After the break-in, two shelter employees viewed a 

surveillance video of the intruder carrying a computer. Both employees identified 

appellant as the intruder. 

During trial, several witnesses testified to having seen a local television news story 

featuring appellant’s claim that the animal shelter had euthanized his dog. The broadcast, 

which aired ten months before trial, is not part of the appellate record. Nor does the 

record contain any other media coverage of the case. 

Appellant took the stand in his own defense and testified to his belief that the 

shelter was negligent in euthanizing his dog and that the shelter was covering up evidence 

of the dog’s death. Appellant claimed to have entered the shelter premises and the 

building with the intent to observe a moment of silence for the dog he believed to have 

died at the hands of shelter employees. According to appellant, he took the shelter’s

computer tower in the hope that it would contain evidence of the shelter’s alleged 

negligence and cover-up.
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The jury did not find appellant guilty of burglary but convicted him of the lesserincluded offense of criminal trespass. The trial court sentenced appellant to one day of 

confinement in a county jail and assessed a fine.

ISSUE PRESENTED

In his sole issue appellant asserts the trial court reversibly erred in refusing his 

mid-trial request to question the empanelled and sworn jury to determine whether any of 

its members had viewed a news story relating to appellant’s case. 

STANDARD OF REVIEW

When, as in this case, a party asks the trial court to poll empanelled jurors about 

news coverage of the case, a trial judge is faced with the decision to deny the request and 

thereby preserve the integrity of the jury or grant the request and risk exposing members 

of the jury, for the first time, to the existence and contents of media coverage they might 

not have seen. Mays v. State, 318 S.W.3d 368, 377–78 (Tex. Crim. App. 2010); see 

Powell v. State, 898 S.W.2d 821, 828 (Tex. Crim. App. 1994). A trial court’s ruling on a 

party’s request to interview empanelled jurors about media coverage is reviewed under an 

abuse-of-discretion standard. Mays, 318 S.W.3d at 378.

ANALYSIS

We begin our analysis by considering the context of appellant’s request to inquire 

of the jury about possible exposure to media coverage concerning the case. The record 

reflects that the request was made toward the end of the trial, after the parties had rested 

and the evidence was closed, but before the trial court charged the jury. At that time,

appellant’s trial counsel sought to question jurors about whether they had viewed a recent

news story that featured ―bits and pieces of the previous [news] story.‖ According to 

appellant’s trial counsel, the news story was prejudicial and one-sided. But, counsel had 

not personally seen the story and did not know when it had aired. Although appellant’s 
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trial counsel characterized the broadcast as prejudicial, he did not identify the contents of 

the news story or provide any other information concerning it.

The trial court denied appellant’s request, noting that questioning about media 

coverage should have been covered in voir dire. Though the trial court declined to allow 

the mid-trial questioning of the empanelled jury, the trial court indicated that other 

measures would protect against the jury’s consideration of any such exposure to media 

coverage. 

The record reflects that soon after the jury was empanelled and sworn, the trial 

court instructed jurors to render a verdict based only on the evidence received during 

trial. The trial court directed the jurors to avoid going online or using the internet to 

search for anything related to the case and specifically admonished the jury to base the 

verdict on the evidence received in the courtroom. See Mays, 318 S.W.3d at 378. In 

ruling on appellant’s request to poll the jury, the trial court noted that the jury charge 

contained an instruction that jurors were not to consider any information other than the 

evidence in the case.1 At the conclusion of the guilt-innocence phase, the trial court 

again reminded the jury of its obligations to base the verdict on evidence, and, when 

charging the jury from the written charge, the trial court specifically instructed jurors that 

they could not consider, discuss, or relate any matters that were not in evidence. See id. 

In the absence of evidence indicating that members of the jury failed to do so, we 

presume the jurors followed the instructions of the trial court. See Gibson v. State, 29 

S.W.3d 221, 225 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d).

Though a jury’s exposure to media coverage holds the potential to compromise a 

fair trial, a presumption of prejudice does not arise solely as a result of media coverage. 

See Powell; 898 S.W.2d at 826. In this case appellant had an opportunity during voir dire 

to ask potential jurors about media coverage that occurred before trial. Appellant asked 

 

1 When the trial court declined the request to poll the jury, appellant moved for a mistrial and the 

trial court overruled appellant’s motion. Appellant does not complain of this ruling.
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one question during voir dire inquiring of the members of the venire panel whether they 

had heard good or bad things about the shelter in the news; only one veniremember had 

heard about the shelter in the news and had heard that the shelter euthanized animals.

Likewise, during trial, appellant had the opportunity to make the trial court aware of the 

contents of the allegedly ―prejudicial‖ recent news story that allegedly contained ―bits 

and pieces‖ of earlier coverage. Appellant did not apprise the trial court of the contents 

of either news story. Instead, appellant waited until after the jury was empanelled and 

trial was underway to make his request to poll the jury about possible exposure to media 

coverage. This timing put the trial court on the horns of a dilemma: deny the request and 

thereby preserve the integrity of the jury or grant the request and risk exposing the jurors

for the first time to the existence and contents of media coverage they might not have 

seen. The trial court chose the first option. In doing so, the trial court foreclosed the risk 

that, by allowing the requested inquiry, the court would expose the jury to the very 

information appellant believed to be prejudicial to his case. Denying appellant’s request 

preserved the integrity of the jury.

Given the lack of any evidence relating to the specific contents or nature of the 

news story in question, the trial court’s specific admonishments to the jury not to 

consider matters not in evidence in reaching its verdict, and the legal presumption that the 

jury followed the trial court’s instructions, we can hardly conclude the trial court abused 

its discretion in balancing the risk of possible prejudice from media coverage against the 

need to preserve the integrity of the jury. See Mays, 318 S.W.3d at 377–79; Powell, 898 

S.W.2d at 828. Under the circumstances of this case, we conclude that the trial court was 

acting within its discretion in denying appellant’s request to poll the jury about the news 

story. See Mays, 318 S.W.3d at 377–79; Powell, 898 S.W.2d at 828. Finding no abuse 

of discretion, we overrule appellant’s sole issue on appeal.
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The trial court’s judgment is affirmed.

_____________________________

Kem Thompson Frost

Justice

Panel consists of Justices Frost, Brown, and Christopher.

Publish — TEX. R. APP. P. 47.2(b).