State rests case against former day care owner Marian Fraser on eighth day of trial

WACO, Texas (KWTX) - Prosecutors rested their case Wednesday afternoon against former Waco day care owner Marian Fraser after calling the lead police detective in the case and reading portions of Fraser’s testimony from her first trial eight years ago.

Defense attorneys are expected to call a pediatrician and possibly an expert in toxicology as Fraser’s murder retrial enters its ninth day in Waco’s 19th State District Court.

Prosecutors Will Hix and Tara Avants called 27 witnesses in their case against the 59-year-old Fraser, who is charged in the March 4, 2013, death of Clara Felton, a 4-month-old who died at Fraser’s Spoiled Rotten day care in her home on Hilltop Drive.

KWTX REPORTER TOMMY WITHERSPOON IS PROVIDING LIVE UPDATES FROM THE COURTHOUSE:

The baby, the daughter of Perry and Loren Felton and the granddaughter of McLennan County Judge Scott Felton, died from a fatal overdose of diphenhydramine, an antihistamine found in over-the-counter allergy medications that should not be given to young children.

Hix and Avants allege Fraser, who operated the popular day care for 24 years, mixed Benadryl or a similar medication in the children’s bottles to make them drowsy and to help maintain her strict nap schedule and daily routine.

It remains unclear if Fraser will testify this time. But the prosecutors, with agreement from the defense, read a portion of the transcript from Fraser’s first trial, including an admission from Fraser that it would constitute an act clearly dangerous to human life for someone to give a baby a product containing diphenhydramine. Fraser, however, denied she ever gave Clara or any of the children in her care diphenhydramine.

Perry and Loren Felton testified Tuesday that they had not given Clara diphenhydramine.

Fraser was sentenced to 50 years in prison after her trial in 2015. The Texas Court of Criminal Appeals, upholding a lower appellate court decision, reversed that conviction and awarded Fraser a new trial because of flawed jury instructions regarding the definition of recklessness on the felony murder count.

In testimony Wednesday, retired Waco police Detective Mike Alston described his investigation into Clara’s death and how he, a medical examiner and a doctor reached the conclusion that the baby was administered the fatal dose of diphenhydramine with her bottle before her afternoon nap on the day she died.

Alston, who retired in January after 34 years with the Waco Police Department, said he was called to the hospital after Clara’s death and spoke to patrol officers, Clara’s parents, Fraser, and Fraser’s day care employee, Sherri Adams.

When asked how many child deaths he investigated in his career, Alston said, “too many.”

He said Clara’s death initially was classified as a “questionable death” until he was notified by Loren Felton that the Southwestern Institute of Forensic Sciences in Dallas, where Clara’s autopsy was conducted, determined that she died from a high dose of diphenhydramine, a level that far exceeded an adult dose, the detective said.

Prosecutors played a video of Alston’s interview with Fraser at the Waco Police Department. Fraser said she and Adams cared for 12 children ranging in age from 3 months to 2 years, and that she  always prepared the bottles for the kids either the night before or in the morning before they arrived.

Fraser said she gave children Tylenol or Motrin if they were sick, but only after getting permission from their parents. After Alston told Fraser the results of the autopsy, Fraser denied giving Clara Benadryl or any other medicine that day.

Fraser suggested the detective ask another parent if she brought Benadryl to the day care. Alston who talked to all the parents who had children at the day care when Clara died, told Fraser that Clara’s parents did not give her diphenhydramine.

“I can’t get past the fact that something happened there, at your house,” Alston told Fraser on the video.

Hix stopped the video to ask Alston if Fraser seemed shocked to learn that Clara had Benadryl in her system. Alston said no.

Fraser told Alston she had Benadryl pills at her house for her dog, who had allergies. She said she kept them in her kitchen cabinet, away from any access by the kids.

Alston later got a search warrant for Fraser’s electronic devices and found a text message between Fraser and her college-age daughter four days after Clara died. In the text, Fraser asked her daughter to get the medication from a cabinet and hide it in her daughters’ closet before a state licensing inspector entered the home. Alston told the jury he found that significant in his investigation.

Fraser kept the day care open until state regulators finally shut it done in late-May 2013.

Christy Jack, one of Fraser’s attorneys, hammered home the points during her cross-examination of Alston that Fraser quickly reported Clara’s condition and immediately asked someone to call 911, she performed CPR on the child, rode to the hospital in the ambulance with her, welcomed police and state investigators into her home and cooperated fully with Alston’s investigation.

Jack said Loren Felton threw her father-in-law’s name around and mentioned her ties to former DA Abel Reyna and one of his investigators while trying to pressure investigators to shut down Fraser’s day care and to lock her up.

Alston acknowledged he asked Loren Felton not to discuss the case with others while his investigation was ongoing, but denied he felt pressure to solve the case because Scott Felton was her grandfather.

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