Marian Fraser v. the State of Texas

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-23-00131-CR

MARIAN FRASER, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 19th District Court
McLennan County, Texas
Trial Court No. 2014-158-C, Honorable David Hodges, Presiding

October 1, 2024
MEMORANDUM OPINION
Before PARKER and DOSS and YARBROUGH, JJ.

This tragic case involves the death of four-month-old C.F.—determined to be

caused by ingestion of diphenhydramine (Benadryl).1

1 This case is before this Court for a third time. See Fraser v. State, 523 S.W.3d 320 (Tex. App.—

Amarillo 2017) (reversing conviction) (Fraser I), rev’d 583 S.W.3d 564 (Tex. Crim. App. 2019) (reversing
and remanding) (Fraser II); Fraser v. State, 593 S.W.3d 883 (Tex. App.—Amarillo 2019, pet. ref’d) (Fraser
III).
Following a plea of not guilty, Appellant, Marian Fraser, was convicted by a jury of

felony murder and sentenced to fifty years’ confinement.2 She challenges her conviction

by the following issues:

(1) The evidence is insufficient to prove she gave the victim diphenhydramine.

(2) The evidence is insufficient to prove administering diphenhydramine to a
child is an act clearly dangerous to human life.

(3) The trial court erred in denying her motion to suppress search warrants
lacking particularized facts establishing probable cause.

(4) The trial court erred in repeatedly admitting speculative and unproven
extraneous offenses.

(5) She suffered egregious harm by a jury charge that failed to require the
essential element that an act clearly dangerous to human life be “in
furtherance of” the underlying felony.

(6) The jury charge contained other errors which when combined resulted in
egregious harm.

(7) She was denied a fair and impartial trial by the trial court’s failure to exercise
its discretion for a change of venue due to a prejudice-ridden environment.

(8) Her Sixth Amendment rights were violated by admission of the autopsy
findings that changed the manner of death from undetermined to homicide
based on invalid testing.

(9) The evidence was insufficient to support felony murder because there was
not an act clearly dangerous to human life separate from the act constituting
the underlying felony.

(10 ) The jury charge was fundamentally defective by allowing a felony murder
conviction based on a single act.

We affirm.3

2 TEX. PENAL CODE ANN. § 19.02(b)(3) (referred to as the felony murder statute).

3 Originally appealed to the Tenth Court of Appeals, this appeal was transferred to this Court by

the Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV’T CODE ANN. § 73.001.
2
BACKGROUND

For more than two decades, Appellant operated a State licensed daycare center

out of her home in Waco, Texas, and her services were in high demand. She generally

limited her care to twelve infants, all under the age of two years. The infants were kept

on a well-defined daily schedule that included naptime between the hours of 12:00 and

3:00 p.m. and she discouraged parents from interrupting the daily routine.

The four-month-old victim, C.F., began staying at Appellant’s daycare on January

2, 2013. In late January, she was sleeping a lot and developed a cough around mid-

February. Later in February, she had a fever which her mother attributed to routine

immunizations.

On March 4, 2013, Appellant and Sherri Adams were working at the daycare. C.F.

arrived at the daycare at approximately 7:45 a.m. She generally brought her own bottle

because she would not finish it at home, and it was usually given to her between 8:15

and 8:30 a.m. Between 11:15 and 11:30, Appellant gave C.F. a bottle. She was solely

responsible for preparing bottles for the children.

C.F. generally slept in a baby swing during naptime but on that day, Appellant

placed her in a bed because she was moving more. As required by State licensing

standards, she placed C.F. on her back. She checked on the children every fifteen

minutes or so.

Should a conflict exist between precedent of the Tenth Court of Appeals and this Court on any relevant
issue, this appeal will be decided in accordance with the precedent of the transferor court . TEX. R. APP. P.
41.3.

3
Around 2:30 p.m. on March 4, Appellant received a phone call from a parent who

wanted to pick up her child early. That child slept in the bed next to C.F. When Appellant

went to get the child, she noticed that C.F. had rolled over and thrown up. She was

unresponsive and not breathing and Appellant began compressions and CPR. She

instructed Adams to call 911. When EMTs arrived, they continued CPR and took C.F. to

the hospital. Appellant rode in the ambulance with C.F and C.F.’s mother was contacted.

C.F. was pronounced dead approximately an hour after arriving at the hospital.

She was the McLennan County Judge’s granddaughter, and her death garnered much

attention. C.F.’s parents initially believed she had died from sudden infant death

syndrome. Her body was sent to a forensic institute in Dallas for an autopsy. A toxicology

report revealed that she had a high level of diphenhydramine in her system when she

died.

Experts testified that diphenhydramine is an antihistamine commonly used as the

active ingredient in over-the-counter medications such as Benadryl and other medications

commonly used to treat allergy and cold symptoms. It can cause sedation and sleepiness

and in excess amounts can affect bodily functions like heartbeat and respiration which

can result in death. It is especially harmful to infants because their underdeveloped livers

are unable to metabolize it and it remains in their system for longer periods of time.

During the investigation, other parents had their children tested and

diphenhydramine was found in varying levels in all of those tested.4 The Childcare

4 The hair follicle test results were admitted in the first trial but were not admitted in the retrial due

to the laboratory and doctor being discredited. The State instead presented extraneous testimony from
some of the parents who testified to their children’s ailments which they attributed to exposure to
diphenhydramine. The extraneous evidence is discussed infra in issue four.
4
Licensing Department of the Texas Department of Family and Protective Services

requires written authorizations from parents for dispensing over-the-counter medications.

Unfortunately, Appellant usually obtained consent via text messages. When she became

aware of the State licensing regulations, she panicked about not having followed protocol.

The licensing department received an intake of C.F.’s death on the night of her

death and immediately opened an investigation. The administrator for daycare

investigations went to Appellant’s home that evening. The next day, the case was

assigned to a childcare investigator. She interviewed Appellant, Adams, C.F.’s parents,

other parents, and a detective.

The investigator cited Appellant for, among other violations, physical abuse and

neglect and not using good judgment. Thereafter the case was given to licensing

inspectors who made unannounced visits. Appellant was asked to close the daycare

pending the investigation, but she agreed to do so only for a week because other parents

expressed a need for childcare. The State’s investigation revealed that Appellant stored

over-the-counter medications in a cabinet together with some prescription medications.

One of the bottles labeled for allergy relief contained diphenhydramine. There was also

a pill crusher and a scale in the cabinet for diphenhydramine pills a veterinarian had

prescribed for Appellant’s dog. After State licensing completed its investigation, the

matter was disposed of as “reason to believe” the incident happened under Appellant’s

care. The daycare closed permanently in late May 2013 and Appellant was cited for

physical abuse of C.F.

5
During an interview with a detective in May 2013, Appellant claimed she never

administered diphenhydramine to C.F. But she soon became the primary suspect in

C.F.’s death. By her own admission, she was the only person who prepared C.F.’s bottles

or administered any medications.

On January 22, 2014, a McLennan County Grand Jury indicted Appellant for the

offense of murder based upon the theory that she “did then and there commit or attempt

to commit an act clearly dangerous to human life, namely, by administering

diphenhydramine to [C.F.] and/or causing [C.F.] to ingest diphenhydramine, which caused

the death of [C.F.], and the said [Appellant] was then and there in the course of or

attempted commission of a felony, to-wit: “Injury to a Child” (Paragraph I) or “Endangering

a Child” (Paragraph II). Following her retrial and murder conviction in 2023, Appellant

pursued this appeal.

ISSUES ONE AND TWO—SUFFICIENCY OF THE EVIDENCE

By her first issue, Appellant maintains the evidence is insufficient to prove she gave

C.F. diphenhydramine and by issue two, she asserts the evidence was insufficient to

prove that administering the drug to a child is an act clearly dangerous to human life. We

disagree.

STANDARD OF REVIEW

The only standard a reviewing court should apply in determining whether the

evidence is sufficient to support each element of a criminal offense the State is required

to prove beyond a reasonable doubt is the standard set forth in Jackson v. Virginia, 443

U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). See Adames v. State, 353 S.W.3d
6
854, 859 (Tex. Crim. App. 2011); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App.

2010). We consider all of the evidence in the light most favorable to the verdict and

determine whether, based on that evidence and reasonable inferences therefrom, any

rational juror could have found the essential elements of the crime beyond a reasonable

doubt. Baltimore v. State, 689 S.W.3d 331, 340–41 (Tex. Crim. App. 2024); Queeman v.

State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017). A jury is permitted to draw

reasonable inferences from the evidence and may use common sense, common

knowledge, personal experience, and observations from life when drawing those

inferences. Baltimore, 689 S.W.3d at 342. We give deference to the responsibility of the

trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts. Jenkins v. State, 493 S.W.3d

583, 599 (Tex. Crim. App. 2016). Each fact need not point directly and independently to

the appellant’s guilt, as long as the cumulative force of all the incriminating circumstances

is sufficient to support the conviction. Id.

We compare the elements of the offense as defined by a hypothetically correct jury

charge to the evidence adduced at trial. Metcalf v. State, 597 S.W.3d 847, 856 (Tex.

Crim. App. 2020) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). In

our review, we must evaluate all of the evidence in the record, both direct and

circumstantial and whether properly or improperly admitted. Clayton v. State, 235 S.W.3d

772, 778 (Tex. Crim. App. 2007).

APPLICABLE LAW

7
Felony murder is an unintentional murder committed in the course of committing a

felony other than manslaughter. Lomax v. State, 233 S.W.3d 302, 305 (Tex. Crim. App.

2007). It is a murder committed in the act of committing another felony. Rodriguez v.

State, 454 S.W.3d 503, 507 (Tex. Crim. App. 2014). The State must prove the elements

of the underlying felony, including the culpable mental state for that felony, but no culpable

mental state is required for the murder committed. Lopez v. State, 582 S.W.3d 377, 394

(Tex. App.—San Antonio 2018, pet. ref’d). Injury to a child is a result-oriented offense

requiring a mental state that relates not to the specific conduct but to the result of that

conduct. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). A person

commits injury to a child if she intentionally, knowingly, or recklessly, or with criminal

negligence, by act or intentionally, knowingly, or recklessly by omission causes to a child

serious bodily injury. TEX. PENAL CODE ANN. § 22.04(a)(1). Serious bodily injury is defined

as bodily injury that creates a substantial risk of death or that causes death. TEX. PENAL

CODE ANN. § 1.07(46).

ANALYSIS

The State was required to prove Appellant committed injury to an infant—

administering diphenhydramine—and in the course of and in furtherance of the

commission or attempt, or in immediate flight from the commission or attempt, she

committed or attempted to commit an act clearly dangerous to human life which caused

C.F.’s death. TEX. PENAL CODE ANN. § 19.02(b)(3).

Appellant is highly critical of the failure of law enforcement to test various items

seized which she claims could have negated that C.F. ingested diphenhydramine in the

8
daycare. This Court does not review the adequacy of law enforcement’s investigation in

conducting a sufficiency analysis; review is limited to the evidence presented at trial. See

Badger v. State, No. 02-18-00475-CR, 2019 Tex. App. LEXIS 9037, at *13 n.5 (Tex.

App.—Fort Worth Oct. 10, 2019, pet. ref’d) (mem. op., not designated for publication).

We do not speculate on the lack of evidence presented by the State. Id.

The medical examiner testified, based on medical literature, that the amount of

diphenhydramine in C.F.’s postmortem blood was 1.3 milligrams per liter which was

significant enough to cause death.5 However, the medical examiner could not determine

how C.F. ingested the drug or whether it was administered in a large dose or numerous

smaller doses. In a May 28, 2013 autopsy report, she listed the cause of death as “toxic

effects of diphenhydramine” and manner of death as “undetermined.”

Subsequent toxicology tests revealed a toxic level of diphenhydramine in C.F.’s

postmortem blood. A few months later, based on information conveyed by a detective,

the medical examiner prepared a second autopsy report changing the manner of death

from undetermined to homicide.

Appellant did not testify in the second trial but her sworn testimony from a previous

hearing was read into the record by agreement of the parties. She acknowledged that

giving diphenhydramine to an infant under two years of age was potentially dangerous,

but denied she was the person who administered it to C.F. Appellant insisted infants in

her care were never given any substance containing diphenhydramine. Although positive

5 Her testimony was based on literature because it is unethical to give drugs to children to perform

studies.
9
hair follicle samples from other children at the daycare testing positive for

diphenhydramine were admitted in the first trial, they were discredited and ruled

inadmissible in the second trial. But parents of four children were allowed to testify their

children suffered from ailments which could only be attributable to exposure to

diphenhydramine. They testified some of their children’s ailments improved after leaving

Appellant’s care.

One of the experts testified that if C.F. had ingested diphenhydramine before being

dropped off at the daycare at 7:45 a.m., there would have been signs of lethargy or

tiredness earlier in the day. But C.F.’s parents denied giving her diphenhydramine. The

evidence showed that, while at the daycare, C.F. was never given any medications by

any person other than Appellant, although Appellant also denied giving her

diphenhydramine. Prior to naptime, Appellant always prepared the children’s bottles.

Following C.F.’s death, Appellant’s daughter who was home for Spring Break,

texted Appellant that the “licensing lady” was in the driveway at the daycare. Appellant

sent her daughter a text message asking her to move “the kids [sic] medicine that is in

the cabinet in the daycare room [to her] closet. Just in case she looks.”

The State presented expert testimony establishing that, although diphenhydramine

is generally considered to be a safe drug when properly administered, it can become

lethal if it builds up in a child’s system, either through repeated smaller dosages over a

period of time or by the administration of one large dose. The State’s expert witness

explained that because diphenhydramine can cause sedation, it should not be given to

children under age two. The witness further established that it takes approximately two

10
years for a child’s liver to fully develop and that the giving of medications to a child whose

liver is not yet fully developed “can have unknown consequences and sometimes

death . . . .” Accordingly, the expert opined that causing diphenhydramine to be ingested

by a four-month-old infant constituted “an act clearly dangerous to human life.”

Appellant argues that when used correctly, diphenhydramine does not pose a

substantial risk of death and administering it cannot be an act clearly dangerous to human

life. But the evidence showed the drug comes with a label warning against its use on

infants. There was also evidence a pediatrician should be consulted when giving a young

child diphenhydramine. The medical examiner testified the level of diphenhydramine

“was just so high,” “[i]t was her cause of death.” The State established that giving the

drug to a four-month-old was an act clearly dangerous to human life and resulted in death.

The how, when, where, and quantity of diphenhydramine to which C.F. was

exposed was hotly contested. The State presented circumstantial evidence from which

the jury could infer that Appellant gave C.F. diphenhydramine and that doing so was an

act clearly dangerous to human life. The State also presented evidence from other

parents whose children were under Appellant’s care that various ailments could have

been caused by ingestion of diphenhydramine and that some of their symptoms improved

after leaving Appellant’s care. Albeit unintentional, C.F.’s death resulted from ingestion

of diphenhydramine. The expert testimony established that in a child as young as C.F.,

her liver was underdeveloped and could not metabolize the drug. The evidence showed

the drug affects heart rhythm and causes respiratory issues which could be fatal. She

had an extremely high level in her body which was determined to be the cause of her

death.
11
Considering all the evidence presented, whether properly or improperly admitted,

and viewing the evidence in the light most favorable to the verdict, we find the evidence

is sufficient to support Appellant’s conviction. Issues one and two are overruled.

ISSUE THREE—MOTION TO SUPPRESS

Two search warrants were obtained several months after C.F.’s death. The first

warrant authorized a search of Appellant’s home and resulted in seizure of cell phones,

an iPad, and a computer. The affidavit in support of that warrant provided in relevant part

as follows:

Affiant knows that it is common for persons to access the internet for the
purpose of obtaining drug information and reactions to various drugs.
Internet access can be gained by the use of a variety of electronic devices
to include but not limited to, computers, laptop computers, cell phones, and
electronic notebooks and net books such as but not limited to iPads,
ereaders [sic], and electronic tablets. Affiant also knows that it is common
for persons to send electronic messages known as emails, text message,
and to keep/store messages sent to other persons and to themselves on
the above-mentioned electronic devices and on electronic storage devices
such as thumb drives.

Affiant is asking for a Search Warrant to search . . . any and all
aforementioned electronic devices and electronic storage devices.

The second affidavit for a search of the devices added the following language:

Affiant knows that a Forensic Search of the above listed electronic
property/evidence could reveal a history of internet searches, electronic
messages known as emails that are sent and received, text messages that
have been sent and received, as well as messages and or postings on
internet social sites such as but not limited to Facebook. A Forensic Search
may also reveal stored messages and or correspondence sent to others or
to themselves.

Affiant believes that a Forensic Search of the above listed electronic
property/evidence that was seized on June 13, 2013 . . . may reveal that
[Appellant] may have searched the internet after the death of [C.F.] to
obtain information on the side effect of diphenhydramine (Benadryl) on
12
infants and young children. Affiant also believes that a Forensic Search of
these devices may reveal electronic mail messages, text messages, and
or social networking site messages such as Facebook that were either sent
or received by or to [Appellant] that may contain information about the
death of [C.F.]

[Bolding in Appellant’s brief].

Appellant filed a written motion to suppress then reurged her motion during a

pretrial hearing. Relying on State v. Baldwin, 664 S.W.3d 122 (Tex. Crim. App. 2022),

cert. denied, __ U.S. __, 143 S. Ct. 777, 215 L. Ed. 2d 47 (2023), she argued at trial and

does so here that the contents of her electronics should have been suppressed because

the affidavits lacked sufficient particularized facts to establish probable cause.

Particularly, she asserts the second affidavit contained no more than general statements

and beliefs. We disagree.

Ordinarily, a trial court’s ruling on a motion to suppress is reviewed under a

“bifurcated standard of review.” Cole v. State, 490 S.W.3d 918, 922 (Tex. Crim. App.

2016). However, when reviewing a magistrate’s decision to issue a warrant, appellate

courts apply a highly deferential standard of review because of the constitutional

preference for searches conducted pursuant to a warrant over warrantless searches.

State v. McLain, 337 S.W.3d 268, 271–72 (Tex. Crim. App. 2011); Cobb v. State, No. 10-

16-00406-CR, 2017 Tex. App. LEXIS 5945, at *22–23 (Tex. App.—Waco June 28, 2017,

pet. ref’d) (mem. op., not designated for publication). Under the Fourth Amendment, an

affidavit supporting a search warrant is sufficient if, from the totality of the circumstances

reflected in the affidavit and the reasonable inferences it supports, the magistrate was

provided with a substantial basis for concluding that probable cause existed. Swearingen

v. State, 143 S.W.3d 808, 811 (Tex. Crim. App. 2004). A defendant seeking suppression
13
of evidence obtained pursuant to a search warrant must prove by a preponderance that

the evidence was obtained in violation of the Fourth Amendment. Ford v. State, 158

S.W.3d 488, 492 (Tex. Crim. App. 2005); State v. Huynh, 683 S.W.3d 803, 814 (Tex.

App.—Houston [1st Dist.] 2023, no pet.).

A reviewing court’s duty is simply to ensure that the magistrate had a substantial

basis for concluding that probable cause existed. State v. Jordan, 342 S.W.3d 565, 569

(Tex. Crim. App. 2011). Probable cause exists when, under the totality of the

circumstances, there is a fair probability that contraband or evidence of a crime will be

found in a particular location. State v. Baldwin, 664 S.W.3d 122, 130 (Tex. Crim. App.

2022). Reviewing courts must give great deference to a magistrate’s probable cause

determination, including a magistrate’s implicit finding. McLain, 337 S.W.3d at 271–72.

When ruling on a motion to suppress evidence obtained pursuant to a search

warrant, a trial court is limited to the four corners of the warrant and affidavit supporting

the warrant. Id. at 271. The affidavit is interpreted in a non-technical, commonsense

manner drawing reasonable inferences solely from the facts and circumstances contained

within the four corners of the affidavit. Bonds v. State, 403 S.W.3d 867, 873 (Tex. Crim.

App. 2013). “When in doubt, we defer to all reasonable inferences that the magistrate

could have made” that are supported by the record. Id. Where, as here, the trial court

did not enter findings of fact,6 we must uphold the trial court’s ruling on any theory of law

applicable to the case and presume the court made implicit findings in support of its ruling

6 The record reflects the trial court intended to enter findings of fact, but none were filed.

14
if the record supports those findings. State v. Ross, 32 S.W.3d 853, 855–56 (Tex. Crim.

App. 2000).

Relying on Baldwin, Appellant contends the affidavits failed to describe with

sufficient particularity the items to be seized. The Court in Baldwin found a search warrant

affidavit for a cell phone insufficient because it did not contain sufficient facts to establish

a fair probability that the search of the cell phone would likely produce evidence in a

murder investigation. 664 S.W.3d at 123. It held that boilerplate language in an affidavit

for the search of a cell phone may be used “but to support probable cause, the language

must be coupled with other facts and reasonable inferences that establish a nexus

between the device and the offense.” Id. The Court found the affidavit lacked information

to “suggest anything beyond mere speculation that [Baldwin’s] cell phone was used

before, during, or after the crime.” Id. at 135.

In the underlying case, the trial court admitted numerous text messages between

Appellant and her daughter which occurred just days after C.F.’s death. Specifically, the

daughter alerted Appellant that a representative from State licensing was in her driveway.

Appellant texted her daughter to move the children’s medications from a cabinet in the

daycare to her closet “just in case” the representative looked. There was also an

exchange of messages referring to the children’s nap routine. Appellant indicated the

children were not napping and she had “quit day care” during naptime on that day.

Appellant contends admission of the text messages was harmful because during

deliberations, the jury sent a note asking to review the text messages between Appellant

and her daughter.

15
Appellant argues that just as in Baldwin, the search warrant affidavit did not

establish that her cell phone was used to facilitate commission of the offense. While

Baldwin is distinguishable but may have been useful to Appellant, she did not have the

benefit of a recent case in which the Court of Criminal Appeals qualified its holding in

Baldwin regarding an affidavit in support of a search warrant for cell phones. See Stocker

v. State, __ S.W.3d __, No. PD-0711-22, 2024 Tex. Crim. App. LEXIS 516 (Tex. Crim.

App. July 31, 2024). In Stocker, the Court characterized as “misguided,” an appellate

court’s interpretation of Baldwin that an affidavit must show use of a cell phone either

during, or immediately before or after, commission of the offense for which a defendant

is on trial. Instead, the Court referred to article 18.0215(c)(5)(B) of the Texas Code of

Criminal Procedure authorizing issuance of a search warrant for a phone if the “device is

likely to produce evidence in the investigation of the criminal activity . . . .” Id. at *5.

In the underlying case, although the affidavits contained boilerplate language, they

provided other factual information related to the investigation surrounding C.F.’s death.

The affiant provided the following factual background in the four corners of the affidavit:

On March 4, 2013, Affiant responded to Providence Hospital in Waco,
McLennan County, Texas. Once at Providence Hospital Affiant found that
C.F. a four-month-old infant had been found unresponsive at the Spoiled
Rotten Day Care located at 1725 Hilltop Drive, Waco, McLennan County,
Texas. C.F. was transported to Providence Hospital by ambulance where
she was pronounced dead shortly after arrival at the hospital.

Affiant was able to view the body of C.F. and saw no signs of trauma or
injury to her. Affiant was also able to speak with Walter Perry Felton and
Lauren Felton the parents of C.F. and found that C.F. had not been ill or
having any unusual medical problems prior to her death. Affiant learned
that Lauren Felton had taken C.F. to the Spoiled Rotten Day Care at around
7:45 AM on March 4, 2013, where she gave C.F. to Marian Fraser who is
the owner/operator of Spoiled Rotten Day Care. At the time that C.F. was

16
dropped off at the day care by her mother she was described as normal and
fine.

Affiant was able to speak with Marian Fraser the owner/operator of Spoiled
Rotten Day Care. Marian Fraser told the Affiant that C.F. was fine that day
of March 4, 2013, when her mother dropped her off at the day care. Marian
Fraser told the Affiant that nothing unusual had happened or occurred with
C.F. that day. Marian Fraser told the Affiant that C.F. was given her last
bottle at around 11:30 AM on March 4, 2013, and that she then was put into
her playpen to have a nap at around 12:30 PM. Marian Fraser told the
Affiant that at around 2:50 PM that C.F. was found unresponsive in her
playpen.

Affiant has learned from Marian Fraser that she operates the Spoiled Rotten
Daycare at 1725 Hilltop Drive in Waco, McLennan County, Texas, and that
this location is also her personal residence.

The body of C.F. was sent to the Southwestern Institute of Forensic
Sciences in Dallas, Texas for an autopsy. Affiant has received a copy of
the Autopsy Report of the autopsy that was conducted on C.F. The findings
of the autopsy are that the Cause of Death of C.F. is from the Toxic Effects
of diphenhydramine (Benadryl). Affiant has spoken with Dr. Keith Pinkard,
Medical Examiner with the Southwestern Institute of Forensic Sciences. Dr.
Pinkard has explained to the Affiant that the effects of diphenhydramine
(Benadryl) are fast-acting. Dr. Pinkard has also told Affiant that with the
information obtained in the Affiant’s investigation that C.F. was fine and
normal when she arrived at the daycare and was fine up to the time she
was put down for her nap; that she would have had to of [sic] be given the
diphenhydramine (Benadryl) while in the care and custody of the daycare.

The language complained of by Appellant is coupled with other facts and

reasonable inferences sufficient to provide a substantial basis for a magistrate to

conclude probable cause existed to search Appellant’s electronics. Unlike in Baldwin in

which police were trying to determine whether a particular person was involved in the

crime, Appellant was already a suspect in C.F.’s death when the warrants were issued.

The affidavit in support of the warrant to search Appellant’s electronics contained the

factual background of the case. It recited that Appellant was the person responsible for

C.F.’s care and the only person who prepared her bottles. C.F. did not exhibit any signs

17
of trauma or abuse and the circumstances of her death occurred while in Appellant’s care.

The affidavit contained sufficient particularized facts supporting a search of Appellant’s

devices which would be “likely to produce evidence in the investigation” of C.F.’s death.

Reviewing the entirety of the affidavits and giving the deference due a magistrate in its

probable cause determination, we conclude the trial court did not abuse its discretion in

denying Appellant’s motion to suppress. Issue three is overruled.

ISSUES FOUR AND EIGHT—ADMISSION OF EXTRANEOUS OFFENSES AND AUTOPSY REPORT

By issue four, Appellant contends the trial court abused its discretion by repeatedly

admitting extraneous-offense evidence from parents of other children cared for by

Appellant. She acknowledges this Court previously found extraneous-offense evidence

of hair follicle results showing the presence of diphenhydramine in other children cared

for by her was properly admitted in her first trial. See Fraser I, 523 S.W.3d at 337–38.

However, in this appeal, she argues that because the hair follicle results were not

admitted in her retrial due to discreditation of the laboratory and the doctor who performed

the tests,7 the trial court abused its discretion in admitting extraneous testimony from

parents of other children on their children’s respective medical issues. She asserts that

without test results, there was no link to the admission of evidence that other children may

have ingested diphenhydramine.

A hearing outside the jury’s presence was held for each of the four parents who

testified regarding their respective children’s ailments and whether their symptomologies

7 Retesting could not be done due to destruction of the original samples.

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were attributable to ingestion of diphenhydramine. Defense counsel objected on

relevance grounds, lack of proof beyond a reasonable doubt, and on whether the

probative value of the evidence outweighed unfair prejudice to Appellant. The objections

were overruled, and defense counsel was granted running objections. Appellant

maintains her objections preserved her complaint for review. We disagree.8

Generally, an objection reciting specific grounds and an adverse ruling will

preserve a complaint for appellate review. TEX. R. APP. P. 33.1(a). However, under Rule

105 of the Texas Rules of Evidence, a party should request the court to restrict evidence

to its proper scope at the time it is offered and request an instruction to preserve a claim

of error. TEX. R. EVID. 105(b)(1). The request must be made “at the moment the evidence

is admitted.” Hammock v. State, 46 S.W.3d 889, 893, 895 (Tex. Crim. App. 2001). “A

failure to request a limiting instruction at the time evidence is presented renders the

evidence admissible for all purposes.” Williams v. State, 273 S.W.3d 200, 230 (Tex. Crim.

App. 2008). Once the evidence is admitted for all purposes, “it is impossible for [jurors]

to go back at the close of the trial and reassess the evidence in light of the limiting

instruction, even if they could appreciate which items of evidence the instruction was

supposed to apply to.” Hammock, 46 S.W.3d at 895.

During the charge conference in the underlying case, defense counsel raised the

issue of extraneous offenses and stated “an instruction that goes to the jury that if there

is any extraneous offense or bad acts that before they can consider it, they must believe

8 Preservation of error is a systemic requirement on appeal regardless of whether the issue was

raised. Ex parte Nuncio, 662 S.W.3d 903, 913–14 (Tex. Crim. App. 2022) (citing Ford v. State, 305 S.W.3d
530, 532 (Tex. Crim. App. 2009)).
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it’s been proven beyond a reasonable doubt. We are not requesting that, we believe that

it is trial strategy.” (Emphasis added).9 To preserve the complaint of admission of

extraneous-offense evidence, defense counsel was required to request a limiting

instruction at the time the evidence was admitted. See Taylor v. State, No. 06-22-00063-

CR, 2022 Tex. App. LEXIS 8160, at *8–9 (Tex. App.—Texarkana Nov. 4, 2022, no pet.)

(mem. op., not designated for publication). No such limiting instruction was requested

when the objected-to evidence was offered, and counsel specifically announced it was

trial strategy not to do so. Thus, the proper procedure for preserving a complaint on

admission of extraneous-offense evidence was not completed. Issue four is overruled.

By her eighth issue, Appellant maintains her Sixth Amendment confrontation rights

were violated by the State’s proffer and admission of a second autopsy finding which

changed the manner of death from undetermined to homicide. Crawford v. Washington,

541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). She contends the medical

examiner changed the finding based on information provided to her by a detective about

the positive results of hair follicle tests of other children in Appellant’s care. She also

claims admission of the second autopsy finding violated the prohibition against hearsay

and prevented her from presenting a complete defense. We agree the trial court erred in

admitting the second autopsy report but conclude the error did not contribute to her

conviction beyond a reasonable doubt. TEX. R. APP. P. 44.2(a).

9 During the first trial, the jury was instructed that evidence of other children under Appellant’s care

being exposed to diphenhydramine was admitted for the limited purpose of showing a common scheme,
plan, or opportunity to administer the drug to children. The State’s theory of Appellant’s common scheme
was that she wanted the children napping from noon until three every day.
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The Confrontation Clause of the Sixth Amendment guarantees the accused the

right to confront the witnesses against her. U.S. CONST. amend. VI. It applies to in-court

testimony and testimonial statements made outside of court. Molina v. State, 632 S.W.3d

539, 543 (Tex. Crim. App. 2021). Out-of-court statements that are “testimonial” in nature

are objectionable unless the prosecution can show the out-of-court declarant is presently

unavailable to testify in court and the accused had a prior opportunity to cross-examine

the declarant. Langham v. State, 305 S.W.3d 568, 575–76.

At a hearing outside the jury’s presence, Dr. Elizabeth Ventura, who performed the

autopsy on C.F. and who signed the second autopsy report, was questioned on the

change in the manner of death from undetermined to homicide. The defense objected on

Sixth Amendment grounds because the changed autopsy finding resulted from

information which could not be challenged. The defense also made a hearsay objection.10

The trial court overruled the objections and admitted the second autopsy finding. Dr.

Ventura explained that the changed finding was based on information received from a

detective described as “additional information.” That information consisted of the hair

follicle tests of other children in Appellant’s care.

Autopsy reports are testimonial where an objective medical examiner would

reasonably believe that the report would be used in a later prosecution. Lee v. State, 418

S.W.3d 892, 896 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d).11 An expert’s opinion

regarding an autopsy report does not violate the Confrontation Clause merely because it

10 The autopsy report was a business record and a public record and thus an exception to the

prohibition against hearsay. TEX. R. EVID. 803(6), (8).
11 Dr. Ventura was not testifying as a surrogate for another medical examiner’s report; she

performed the autopsy on C.F. and signed the second report. Cf. Bullcoming v. New Mexico, 564 U.S. 647,
651, 131 S. Ct. 2705, 180 L. Ed. 2d 610 (2011).
21
is based, to some degree, on inadmissible evidence provided that the facts or data is of

a type on which experts in the field can reasonably rely. See Paredes v. State, 462

S.W.3d 510, 517–18 (Tex. Crim. App. 2015). See also TEX. R. EVID. 703 (providing that

an expert may base an opinion on facts or data the expert has been made aware of)

(emphasis added)). Here, however, Dr. Ventura’s testimony was based, in part, on

discredited hair follicle tests which were not admitted in the second trial. Her testimony

relied on unreliable information which Appellant did not have an opportunity to challenge.

We agree with Appellant that the trial court erred in admitting the second autopsy report.

A Confrontation Clause violation, once proven, is subject to harmless error analysis under

Rule 44.2(a) of the Texas Rules of Appellate Procedure. Rubio v. State, 241 S. W.3d 1,

3 (Tex. Crim. App. 2007).

HARMLESS ERROR ANALYSIS

In conducting a harmless error analysis of constitutional error, the Court of Criminal

Appeals has observed the following factors as relevant: (1) how important the out-of-

court statement was to the prosecution; (2) whether the out-of-court statement was

cumulative of other evidence; (3) the presence or absence of evidence corroborating or

contradicting the out-of-court statement on material points; and (4) the overall strength of

the prosecution’s case. Scott v. State, 227 S.W.3d 670, 690 (Tex. Crim. App. 2007).

Dr. Ventura’s reliance on the hair follicle tests to support homicide as the manner

of death was important to the State but was somewhat cumulative of extraneous

testimony offered by parents who testified their children had ailments attributable to

ingestion of diphenhydramine. Interestingly, Appellant could have but did not proffer the

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original autopsy report which showed the manner of death as undetermined and would

have allowed the jury to resolve the inconsistency.

The State’s case was based solely on circumstantial evidence. There was no

determination on how and in what manner C.F. ingested a lethal dose of

diphenhydramine. C.F.’s parents and Appellant insisted they did not give her

diphenhydramine; thus, the State needed evidence to contradict Appellant’s defensive

theory—a material point in the case. Dr. Ventura’s expert testimony was critical for the

State to satisfy its burden of proof.

We conclude the admission of the second autopsy report was not a contributing

factor in the jury’s deliberations and did not affect the integrity of the process leading to

Appellant’s conviction. Id. Thus, the trial court’s error was harmless. Issue eight is

overruled.

ISSUES FIVE, SIX, NINE, AND TEN—JURY CHARGE ERROR

Appellant contends she suffered egregious harm based on the following alleged

errors contained in the jury charge:

• failed to require the essential element that an act clearly dangerous to
human life be “in furtherance of” the underlying felonies;

• failed to include the elements of the underlying felonies;

• failed to state the mens rea required for the underlying felonies;

• failed to define manslaughter; and

• failed to contain an instruction on causation.

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Relying on the dissent in Fraser II and Johnson v. State, 4 S.W.3d 254 (Tex. Crim. App.

1999), she asks this Court to apply statutory construction to determine whether the same

act—administering diphenhydramine—can serve both as the underlying felony and an

act clearly dangerous to human life.12

“An appellate court’s resolution of questions of law in a previous appeal are binding

in subsequent appeals concerning the same issue.” State v. Swearingen, 478 S.W.3d

716, 720 (Tex. Crim. App. 2015). As the State correctly points out, Appellant’s issues

were previously addressed and resolved by this Court and the Court of Criminal Appeals

in Fraser I and Fraser II. Thus, under the law of the case doctrine, which applies to

criminal cases, Ware v. State, 736 S.W.2d 700, 701 (Tex. Crim. App. 1987), we decline

to revisit the issues. We overrule issues five, six, nine, and ten.

ISSUE SEVEN—DENIAL OF CHANGE OF VENUE

Appellant asserts she was denied a fair and impartial trial by the trial court’s failure

to change venue on its own motion.13 We disagree.

Article 31.01 of the Code of Criminal Procedure provides that a presiding judge

may order a change of venue if he is not satisfied that a fair and impartial trial can be had

in the county in which the case is pending. TEX. CODE CRIM. PROC. ANN. art. 31.01.

Generally, a change of venue may be granted if there exists in the county where

12 The Court of Criminal Appeals noted in Fraser II that it had previously rejected the same
argument in Johnson. 583 S.W.3d at 570 n.40.

13 Appellant filed a motion for a change of venue pursuant to article 31.03(a) of the Texas Code of

Criminal Procedure. However, she concedes she did not fully comply with the statutory requirements.
Nonetheless, she argues the trial court should have changed venue on its own motion under article 31.01
due to a prejudice-ridden environment.
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prosecution is commenced so great a prejudice against her that she cannot obtain a fair

trial and there is a dangerous combination against her instigated by influential persons,

by reason of which she cannot expect a fair trial. TEX. CODE CRIM. PROC. ANN. art.

31.03(a)(1).

A change of venue is warranted because of pretrial publicity if “the publicity about

the case was pervasive, prejudicial and inflammatory.” Salazar v. State, 38 S.W.3d 141,

150 (Tex. Crim. App. 2001); Gentry v. State, 259 S.W.3d 272, 278 (Tex. App.—Waco

2008, pet. ref’d). Two primary means of discerning whether publicity is pervasive are a

hearing on the motion to change venue and the voir dire process. Gentry, 259 S.W.3d at

278. If the accused raises “substantial doubts about obtaining an impartial jury” because

of “widespread inflammatory news coverage,” the constitutional right to a fair trial is

implicated. Id. (citing Phillips v. State, 701 S.W.2d 875, 879 (Tex. Crim. App. 1985),

overruled on other grounds, Hernandez v. State, 757 S.W.2d 744, 751 n.15 (Tex. Crim.

App. 1988)). Publicity alone, however, does not establish prejudice or require a change

of venue per se. Willingham v. State, 897 S.W.2d 351, 357 (Tex. Crim. App. 1995).

A transfer of venue is reviewed for abuse of discretion and will not be disturbed on

appeal absent a showing of abuse of discretion. Gonzalez v. State, 222 S.W.3d 446, 449

(Tex. Crim. App. 2007). A decision to deny a motion for change of venue is not outside

the zone of reasonable disagreement merely because a number of venirepersons heard

about the case from pretrial publicity. Id. at 450.

Appellant acknowledges the heavy burden of establishing community prejudice to

the degree it resulted in the denial of a fair and impartial trial. Renteria v. State, 206

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S.W.3d 689, 709 (Tex. Crim. App. 2006). But she argues the burden was met in her case

because publicity was pervasive, prejudicial, and inflammatory. She asserts that for a

decade, from the initial death in 2013 to the civil and criminal proceedings that followed,

her community was “inundated with publicity that the county judge’s granddaughter had

been murdered by the daycare worker who gave her Benadryl.” The county judge was

an influential person, and his office was in the same building where the trial took place.

He attended the proceedings and the defense’s request to place him under the Rule was

denied. She asserts the most harmful coverage, however, was the debunked hair follicle

test results that she had given diphenhydramine to other children in her care.

At a pretrial hearing, the defense presented several long-time McLennan County

residents who testified Appellant could not receive a fair trial in Waco or McLennan

County. The witnesses had long-standing relationships with Appellant and knew her well

through church. They testified the publicity surrounding Appellant’s case was pervasive

and negative. They also agreed C.F.’s relationship to the county judge, a respected

individual who wields a great deal of political power, piqued interest in the case. One of

the witnesses blamed the media for the negative publicity; the case earned the moniker

“the Benadryl case.” But during cross-examination, the witnesses admitted they probably

followed the news more closely because they knew Appellant.

The witnesses testified Appellant’s name continued to be discussed in close circles

such as church groups or coffee groups. Conversations regarding her were very negative

and social media comments were “hateful” and “hurtful” and intimated “she did it.” But

there was testimony that since the 2015 trial, coverage of the case had decreased.

26
Evidence showed McLennan County’s population was approximately 250,000

during the first trial in 2015. One of the witnesses, who was well-connected in the

community through his employment, church, several boards, and the Chamber of

Commerce, approximated that based on an annual growth pattern of six percent, 10,000

people had probably moved to the county since 2015. He agreed newer residents would

not have been following the local news at that time. He testified it was possible that a

randomly selected group of people would not know Appellant and would not have formed

any opinions about her. The trial court deferred its ruling on the motion to change venue

until after a jury was seated and then denied the motion.

Appellant maintains the trial court’s ruling was compounded because it denied a

request for two additional peremptory challenges to remove venirepersons who had

knowledge of the case.14 She asserts the ruling also resulted in juror misconduct when,

after the defense rested, three jurors sent a note to the trial court complaining of a juror

who was following the case on Twitter. The trial court excused that juror, replaced him

with an alternate juror, and questioned other jurors who represented they could be fair.

But Appellant insists the negative publicity nevertheless permeated deliberations and

removed her presumption of innocence.

The trial court took measures to seat an unbiased jury. A questionnaire was

prepared to address the possibility of venirepersons who may have been influenced by

negative publicity. Based on the answers to the questionnaire, both sides agreed to

14 The State argues the defense was not entitled to two additional peremptory challenges because

it should have challenged the potential jurors for cause but did not do so.
27
discharge forty-two venirepersons. Also, the trial court ordered individual voir dire to

eliminate prospective jurors who had already formed opinions based on pretrial publicity.

In the underlying case, the evidence at the hearing on the motion for a change of

venue showed that a small fraction of the population of the county who knew Appellant

well were closely following the trial. Publicity and media coverage does not rise to an

automatic showing of prejudice entitling a defendant to a change of venue. Renteria, 206

S.W.3d at 709. Jurors were not required to be completely ignorant of issues in the case.

Id. Additionally, the trial court used the jury selection process to gauge the community’s

climate of opinion. Colone v. State, 573 S.W.3d 249, 257 (Tex. Crim. App. 2019). We

conclude based on the testimony from the hearing on the motion to change venue and

the precautions taken during the voir dire process, the trial court did not abuse its

discretion in retaining venue in McLennan County. Issue seven is overruled.

CONCLUSION

Having overruled all ten issues, we affirm the trial court’s judgment.

Alex Yarbrough
Justice

Do not publish.

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