Former Waco day care owner Marian Fraser, who won a new trial in June in the Benadryl overdose death of a baby in her care, was released from the McLennan County Jail on Monday afternoon after posting bail.
The Texas Court of Criminal Appeals in Austin set $50,000 bail for the 54-year-old Fraser earlier this month and Fraser was brought back to McLennan County from the Murray prison unit in Gatesville on Friday.
Fraser was convicted of murder and sentenced to 50 years in prison in May 2015 in the death of Clara Felton, County Judge Scott Felton’s granddaughter. The 4-month-old died in March 2013 after being given a toxic amount of diphenhydramine, the active ingredient in Benadryl, while at Fraser’s Spoiled Rotten Day Care on Hilltop Drive.
Fraser’s attorney, Alan Bennett, said 19th State District Judge Ralph Strother set conditions for Fraser’s release Monday morning, including ordering her to wear a GPS ankle monitor, to remain in McLennan County and to not have contact with any witness in her case or any children other than her own family members.
“Her family is happy that she is home and that she will be able to stay there while the appeal is pending,” Bennett said.
Trial testimony revealed that 15 other children from her day care tested positive for diphenhydramine.
Fraser, who operated the day care in her home for 25 years, testified she never gave Benadryl to the children in her care without their parents’ knowledge or consent. The Feltons and a dozen other parents whose children tested positive said they did not give Fraser permission to give their children Benadryl.
The Seventh Court of Appeals in Amarillo reversed Fraser’s conviction in June and awarded her a new trial after ruling that Strother’s instructions to the jury about Fraser’s intent level were improper. The indictment against Fraser used the same language as the jury charge, and her trial attorney did not object to it.
According to the appeals court’s opinion, the trial court’s instructions improperly said Fraser could be convicted of murder if jurors found she acted recklessly or with criminal negligence. A conviction for felony murder requires that a defendant act knowingly or intentionally, the appeals court ruled.
Two Tarrant County prosecutors handled Fraser’s case after McLennan County District Attorney Abel Reyna recused his office because Reyna knows a number of parents whose children were entrusted to Fraser, including Scott Felton and a former prosecutor in his office.
The Tarrant County prosecutors appealed the reversal, and the Court of Criminal Appeals agreed to consider it and approved the state’s request for oral arguments in the case. No date for the arguments has been set.