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 a ppellant Brian Walker Simon assert s that the trial court2

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.

B ACKGROUND Appellant was charged by indictment with the felony offense of burglary of a buildin g 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 nigh t , while the shelter was closed. Appellant pleaded ―not guilty‖ to the charged
offense. A jury trial followed.

Accordi ng to the record, in the months before the intrusion, appellant had tried to obtain information from the animal shelter about his dog N ino, a Chihuahua

. A ppellant had accused the shelter of euthanizing the dog

. During these encounters, appellant interacted with shelter employees. After the break

- in , t wo shelter employees viewed a surveillance video of the intruder carrying a computer. Both employees identified appellant as the intruder. During trial, s everal witnesses testified to having seen a local television news story featuring appellant’s claim that the animal shelter had euthanized his dog

. T he 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 t he 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

. Accordi ng 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

.3

The jury did not find appellant guilty of burglary but convicted him of the lesser

included offense of crimin al trespass. The trial court sentenced appellant to one day of
confinement in a county jail and assessed a fine.

I SSUE P RESENTED

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

- trial request to question the empane lled and sworn jury to determine whether any of
its members had viewed a news story relating to appellant’s case.

S TANDARD OF R EVIEW
When , as in this case, a party asks the trial court to poll empanelled jurors about news coverage of the case, a trial ju dge is face d 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

. May s v. State , 318 S.W.3d 368, 377

– 78 (Tex. Crim. App. 2010 ) ; s ee Powell v. State , 898 S.W.2d 821, 82 8 (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

- discr etion standard . Mays , 318 S.W.3d at 378

. A NALYSIS 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, af ter 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 fe atured ―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

. Alt hough appellant’s4

trial co unsel 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 shoul d 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 rec ord 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

sear ch 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 ch arge 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 t he 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 th at 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 comprom ise a fair trial, a presumption of prejudice does not arise solely as a result of media coverage.
S ee Powell ; 898 S.W.2d at 82 6

. In this case appellant had an opportunity during voir dire to ask potential jurors about media cov erage that occurred before trial. Appellant asked

1 When the trial court declined the request to poll the jury, appellant moved for a mistrial and t he trial court overruled appellant’s motion. Appellant does not com plain of this ruling.5

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 di d 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 t rial 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
preserve d 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 ver dict, 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 o f the jury

. See Mays , 318 S.W.3d at 37 7

– 79; Powell , 898 S.W.2d at 828

. U nder the circumstances of this case , we conclude that the trial court w as acting within its discretion in denying appellant’s request to poll the jury about the news story

. See Mays , 318 S.W.3d at 37 7

– 79; Powell , 898 S.W.2d at 828. Finding no abuse
of discretion , w e overrule appellant’s sole issue on appeal.6

The trial court’s judgment is affirmed.

_____________________________ Kem Thompson Frost Justice

Pane l consists of Justices Frost, Brown, and Christopher.
Publish

— T EX

. R. A PP

. P. 47.2( b).