FRASER, MARIAN v. the State of Texas

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0964-24

MARIAN FRASER, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE SEVENTH COURT OF APPEALS
McLENNAN COUNTY

PARKER, J., filed a concurring and dissenting opinion.

CONCURRING AND DISSENTING OPINION

I disagree with the Court’s resolution of the Fourth-Amendment issue. Although a nexus

between a cell phone and the offense are needed to establish probable cause to search the phone, I

would find a sufficient nexus when the police had probable cause to believe that an infant died of

medicine poisoning while under professional care in a home-based caregiver business.

In State v. Baldwin, this Court held that “generic boilerplate language about cell phone use

among criminals” in a probable-cause affidavit is not sufficient by itself to establish probable cause
FRASER CONCURRENCE/DISSENT — 2

to search a cell phone.”1 A probable-cause affidavit also needs to contain “specific facts connecting

the items to be searched to the alleged offense.”2

Massachusetts similarly requires a “nexus.”3 But in Commonwealth v. Fernandes, the

Supreme Court in that state held that the nexus can be established by the type of crime and the nature

of the evidence sought.4 The court found a sufficient nexus to search a digital camera when the

suspected crime was a family-violence homicide, even though there were no facts showing that the

camera was present or used during the offense and no specific information suggesting that the

camera memorialized evidence of the offense.5 The court pointed out that, “[i]n crimes of domestic

violence, our cases have repeatedly recognized that evidence explaining the nature of the relationship

between the defendant and the victim is relevant and admissible to prove state of mind and intent.”6

Images from a camera “would obviously provide insights into the nature of the relationship,

including the victim’s appearance at identifiable periods up to and possibly including the date of the

crime.”7 The court distinguished the domestic-violence situation from an armed robbery, “where the

only connection between the suspect’s cell phone and the crime was generalized police experience

1
664 S.W.3d 122, 134 (Tex. Crim. App. 2022).
2
Id.
3
Commonwealth v. Fernandes, 148 N.E.3d 361, 373 (Mass. 2020).
4
Id.
5
Id.
6
Id.
7
Id.
FRASER CONCURRENCE/DISSENT — 3

locating useful cell phone evidence in other multiple-defendant criminal investigations.”8 The nexus

between the camera and the domestic-violence crime was “not speculative; there was a substantial

basis to believe it would provide a clear window into the nature of the relationship.”9

The reasoning in Fernandes applies to the present case. Although the present case does not

involve an alleged “domestic violence” crime, similar considerations are present—the issue here was

caregiver violence, and the suspected mechanism of death was poisoning via an over-the-counter

medication. Appellant operated her caregiver business out of her home, so any communications or

records of that business would be expected to be found on a personal phone or a home computer.

That would include any information that Appellant used Benadryl as part of her business practices

in caring for children. Her cellphone could thus contain information both on her relationship with

the children under her care—including the victim—and on her professional business practices.

Consequently, I think the following facts provided a sufficient nexus to search the phone: (1) an

infant died of Benadryl poisoning, (2) the infant died during Appellant’s care, (3) Appellant was

caring for the infant as a professional caregiver, and (4) Appellant ran her caregiver business out of

her home. Under these facts, which can all be found in the probable-cause affidavit, I would

conclude that the police had probable cause to search any of Appellant’s personal or home electronic

devices that were capable of containing records or communications relating to Benadryl usage in her

caregiver business.

With these comments, I dissent on the Fourth-Amendment issue (ground 3) and join the

Court’s opinion on the other issues.

8
Id. at 374.
9
Id.
FRASER CONCURRENCE/DISSENT — 4

Filed: September 3, 2025

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