Marian Fraser

Fraser is shown at her 2015 trial. In the background is 19th State District Judge Ralph Strother.

The state’s highest criminal court has vacated a lower court’s reversal of former Waco day care owner Marian Fraser’s murder conviction and sent the case back to the intermediate appeals court for additional review.

The Court of Criminal Appeals of Texas ruled Wednesday that the 7th Court of Appeals in Amarillo was wrong when it reversed Fraser’s conviction in the March 2013 death of Clara Felton, an infant in her care at Fraser’s former Spoiled Rotten Day Care on Hilltop Drive.

The high court vacated the lower court’s decision and sent the case back to consider another of Fraser’s points of error claims that the 7th Court did not review before, her contention that the definition of “reckless” in the court’s charge to the jury was overly broad.

Fraser, who remains free on $50,000 appeal bond set by the Court of Criminal Appeals, was convicted of murder and sentenced to 50 years in prison in May 2015. The 7th Court of Appeals reversed her conviction in June 2017, but state prosecutors asked the Court of Criminal Appeals to review the opinion.

Wednesday’s ruling could have an effect on Fraser’s freedom. Tarrant County prosecutor Melinda Westmoreland said she is considering filing a motion to revoke Fraser’s bond, a move that will require a contested hearing.

“Obviously, we are pleased that the Court of Criminal Appeals agreed with us,” Westmoreland said. “We feel like we had a righteous argument from the beginning. It has just been a long time coming for this case and all these families. It has been like a really big roller coaster for these families. After so many years, it is nice they are finally going to get the justice they deserve.”

Westmoreland and fellow Tarrant County prosecutor Dale Smith prosecuted Fraser after former 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.

15 other children

Clara Felton, the 4-month-old granddaughter of McLennan County Judge Scott Felton, died after being given a toxic amount of diphenhydramine, the active ingredient in Benadryl, while in Fraser’s care. Trial testimony revealed 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 Amarillo court 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 in error. 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.

However, in reversing the opinion, the Court of Criminal Appeals, with Judge Michelle Slaughter dissenting, ruled that any felony can serve as an underlying offense for felony murder as long as it is not manslaughter or a lesser-included offense of manslaughter.

“We also held that, for the purpose of serving as a predicate felony, the offense of injury to a child is not a lesser included offense of manslaughter,” the opinion states. “Nevertheless, the court of appeals in this case concluded that certain versions of the offense of injury to a child can be lesser-included offenses of manslaughter for the purpose of the felony-murder statute. The court of appeals held that the same could be said for certain versions of the child-endangerment offense. We disagree and reverse the judgment of the court of appeals.”

Waco attorney Alan Bennett, who represents Fraser in her appeal, said they are disappointed in the order.

“As Judge Slaughter stated in her dissent, ‘Texas is the only state that interprets its felony-murder statute in a way that permits unlimited strict first-degree criminal liability for any accidental death arising from the commission or attempted commission of any felony (except manslaughter or lesser-included offenses of manslaughter).’

“We agree with her view, but unfortunately, a majority of the court does not. We look forward to presenting additional arguments to the Amarillo Court of Appeals on why the conviction should be reversed,” Bennett said.

Scott Felton said he is pleased with the court’s decision.

“Maybe we can get on with our lives now,” Felton said. “It doesn’t bring our granddaughter back or my son’s and his wife’s child back.”

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