Jury selection scheduled to begin Monday in retrial of ex-Waco daycare owner charged in child’s overdose death

Published: Feb. 24, 2023 at 5:37 PM CST
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WACO, Texas (KWTX) - Prospective jurors in the retrial of former Waco day care owner Marian Fraser filled out questionnaires Friday and were told to return to court Monday for the start of jury selection.

Attorneys in the case will review the 150 questionnaires over the weekend, which court officials hope will assist in the selection of a fair and impartial jury starting at 1 p.m. Monday.

Judge David Hodges told the panel assembled in the courthouse annex jury room that jury selection could continue into Tuesday, and said the trial is expected to last at least 10 days.

Fraser, 59, is charged with murder and injury to a child in the March 2013 death of Clara Felton, a 4-month-old child Fraser cared for at her Spoiled Rotten home day care. Fraser was convicted of murder and sentenced to 50 years in prison in 2015 after a trial in Waco’s 19th State District Court.

The jury convicted Fraser of giving the infant a toxic amount of diphenhydramine, or Benadryl, without the consent of the child’s parents, Perry and Loren Felton. Clara Felton is the granddaughter of McLennan County Judge Scott Felton.

Fraser’s conviction was overturned and she was awarded a new trial after the Texas Court of Criminal Appeals ruled that former Judge Ralph Strother gave the jury improper instructions concerning Fraser’s culpable mental state on the felony murder charge.

Fraser, who remains free on bond, testified at her first trial she never gave Benadryl to children in her care without parental consent.

Fraser’s attorneys, Christy Jack, Letty Martinez and Alex Thornton, sought to have Fraser’s retrial moved to another county, citing concerns that publicity surrounding her previous trial and upcoming retrial could taint the jury pool.

Hodges conducted a change of venue motion in the case but withheld a ruling, saying he would wait to see how the jury selection process goes.

The juror questionnaire asked 13 questions and was used to determine if the panel has been exposed to publicity about the case; if they have formed any views about the case because of publicity; and whether they have formed opinions about whether Fraser is guilty or not.

The questionnaire also asked if the potential juror, a family member or close friend has been a victim of a violent crime; if they had been accused of a violent crime; if a friend or family member has had a bad experience with police; what their main sources of news are; and if they know any of the 87 prospective witnesses in the case.

Hodges has placed Fraser’s attorneys and prosecutors Will Hix and Tara Avants under a gag order, preventing them from discussing the case in the media.

The parents of 14 other children in Fraser’s care had hair follicle tests performed at a private lab in Houston after the baby’s death. The tests revealed the other children had been given Benadryl without their parents’ consent. However, evidence from those tests won’t be available at Fraser’s retrial because the lab has since been shut down and its director sanctioned after an investigation by the Texas Forensic Sciences Commission.

The hair samples were not available for retesting because the lab destroyed them, officials have said.