Marian Fraser

Fraser

Staff photo — Rod Aydelotte, file

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, likely will be released from custody next week while the state’s highest criminal court reviews her case.

The Court of Criminal Appeals in Austin set a $50,000 bail bond for the 54-year-old Fraser on Thursday, and her attorney said Fraser will be released on bond next week after she is returned to McLennan County from the Murray prison unit in Gatesville.

Fraser was convicted of murder and sentenced to 50 years in prison in May 2015 in the death of Clara Felton. 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.

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.

In June, the Seventh Court of Appeals in Amarillo reversed Fraser’s conviction and awarded her a new trial after ruling that 19th State District Judge Ralph Strother’s instructions to the jury regarding Fraser’s level of intent were not proper. 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 acts knowingly or intentionally, the appeals court ruled.

Tarrant County prosecutors Melinda Westmoreland and Dale Smith served as prosecutors in Fraser’s case. McLennan County District Attorney Abel Reyna recused his office because Reyna knows a number of parents whose children were entrusted to Fraser, including a former prosecutor in his office.

The Tarrant County prosecutors appealed the reversal in what is known as a state petition for discretionary review, and the court of Criminal Appeals agreed to consider it.

Fraser’s appellate attorney, Alan Bennett, filed a motion in October asking the Court of Criminal Appeals to grant her bail while her case is reviewed.

Strother said Friday he will impose a number of conditions on Fraser’s release should she make bail, including wearing a GPS ankle monitor and requirements that she remain in McLennan County and have no contact with children younger than 17.

Bennett said he is confident Fraser will be able to post bond and be released.

McLennan County Judge Scott Felton, Clara Felton’s grandfather, declined comment Friday when asked about the likelihood Fraser will be released from custody.

Staff writer at the Waco Tribune-Herald covering courts and criminal justice. Follow me on Twitter @TSpoonFeed.

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