Fraser, Marian (02/19/2025)

02/19/2025

PD-0964-24

  1. The court of appeals misapplied Rule 105 of the Rules of Evidence to incorrectly hold that objections to extraneous offenses are forfeited by not requesting a limiting instruction.
  2. The court of appeals misinterpreted Stocker’s explanation of Baldwin to erroneously hold that no nexus is required between the crime and digital devices to substantiate a search warrant.
  3. Is giving an infant Benadryl an act clearly dangerous to human life? Where there is no evidence of when, where, how, and in what form a child ingested Benadryl, how can the evidence possibly prove who administered it? The court of appeals erroneous sufficiency review is based upon false statements of the record, conflicting findings, a failure to review all the evidence, and consideration of discredited, inadmissible forensic testing.  

A four-month-old at Fraser’s daycare died and was found to have a high enough level of Benadryl in her system to cause her death. Fraser alone was responsible for preparing the babies’ bottles. Police seized her phone and other electronic devices under a search warrant. Text messages from her phone revealed that she asked her daughter to move the babies’ medication out of the daycare in case someone from the State licensing agency looked there. Text messages also revealed that the babies were not napping well on the day the four-month-old died. Fraser was indicted for felony murder for committing an act clearly dangerous to human life, namely, administering or causing the baby to ingest Benadryl. During the trial, the State proffered testimony about four other babies at the daycare who suffered ailments that could be attributable to Benadryl exposure and that improved after Fraser was no longer keeping them. Fraser objected to admission of this extraneous evidence but, as a matter of strategy, chose not to ask for a limiting instruction. The objection was overruled.

The trial court also denied Fraser’s motion to suppress the text messages, which came from a phone seized under search warrants for electronic devices in Fraser’s home. The affidavits for the warrants were based on the belief that these devices could reveal information about the baby’s death or that Fraser had searched the internet for side effects of Benadryl on children given that people commonly search the internet for drug reactions and commonly use electronic devices to send emails and text messages. The trial court rejected Fraser’s claim that under State v. Baldwin, 664 S.W.3d 122 (Tex. Crim. App. 2022), the affidavit lacked sufficient particularized facts to establish probable cause that evidence would be found on the devices.

The jury convicted Fraser, implicitly finding that causing a four-month-old to ingest Benadryl constituted an act clearly dangerous to human life. That finding was supported by expert testimony stating as much. The expert explained that administering Benadryl in one large dose or repeated smaller dosages over time can become lethal because infant livers are not fully developed and cannot metabolize the drug. Appellant acknowledged that giving Benadryl to infants under two was potentially dangerous.  

Fraser appealed and complained about the admission of the extraneous children’s ailments, the suppression ruling, and sufficiency of the evidence. The court of appeals held that under Rule of Evidence 105, Fraser’s failure to request a limiting instruction forfeited her complaint to the admission of extraneous evidence.

It upheld the suppression ruling in reliance on Stocker v. State, 693 S.W.3d 385 (Tex. Crim. App. 2024), which clarified that a warrant affidavit did not necessarily need to show use of a cell phone before, during, or after commission of the offense, only that the device is likely to produce evidence in the investigation of criminal activity. This standard was met because other facts in the affidavit showed that the baby died of the toxic effects of Benadryl and Fraser was the only person who was preparing the bottles. This was not a situation like Baldwin where the police were trying to determine who was involved in the crime; Fraser was already a suspect.  

In regard to sufficiency, Appellant argued that when used correctly, Benadryl administration does not pose a substantial risk of death, and that the State had not established how the Benadryl had been administered. The court of appeals rejected this, pointing in part to the medical examiner’s testimony that the level of Benadryl “was just so high.” It affirmed Fraser’s conviction.

On the evidence point, Fraser argues that requests for limiting instructions are required only if evidence is admissible for one purpose and not another and that the extraneous conduct evidence was inadmissible for any purpose. She contends this evidence was not relevant, more prejudicial than probative, and not proven beyond a reasonable doubt.  

On the suppression issue, she argues that the court of appeals’ reliance on Stocker effectively overrules Baldwin’s requirement of a nexus between the devices and the offense and the idea that simple ownership of a computer or phone isn’t a sufficient factual basis to search them. Fraser contends that the court of appeals merely pointed to particularized facts showing probable cause a crime was committed, not that Fraser’s phone would contain evidence.

On the sufficiency point, Fraser argues that the law requires conduct that is “objectively” clearly dangerous and that without proof of how, when, and in what amount the Benadryl was given, this standard was not met. She criticizes the court of appeals’ over-reliance on inferences from the child’s death and for ignoring all the evidence negating that Benadryl is clearly lethal. She contends there is insufficient evidence that Fraser administered the Benadryl. The court of appeals also should not have referred to hair-follicle evidence from the other children since that evidence was discredited and not admitted in this trial.