Waco, Tx (FOX44) – A new murder trial of a woman accused in the death of a child she is accused of giving Benadryl to has now been set to begin Monday in McLennan County’s 19th District Court, despite an earlier motion by defense attorneys to have the trial moved on a change of venue.
Marian Fraser was granted a new trial following her conviction and sentencing in the death of Clara Felton at Fraser’s daycare on March 4, 2013. Clara was found in the nap room unresponsive and not breathing. Despite efforts by emergency personnel, she could not be revived.
Toxicology tests revealed a toxic level of the drug that is the active ingredient in Benadryl. Fraser was accused of giving children in her care the drug as part of the way to keep the children in her care on a set sleeping schedule.
A court spokesperson said a jury panel of 100 potential jurors has been called to appear Monday. Members of the panel will be asked to fill out questionnaires to determine if they have predetermined opinions in the case. Potential juror interviews will then be conducted Tuesday.
If the judge determines that Fraser can get a fair trial locally, the trial will begin.
The Court of Appeals first overturned the conviction in June 2017. The Texas Court of Criminal Appeals reversed this decision after an appeal from prosecutors and sent it back to the lower court for further review.
The Court of Appeals overturned the conviction for a second time, saying the trial court erred in its charge to the jury. The court says that error robbed Fraser of her right to a fair trial and affected the juror’s view of a defensive theory.
The McLennan County District Attorney’s Office recused itself from the initial trial, so the District Attorney from Tarrant County took over.
In the first conviction, Fraser had been assessed a 50-year sentence.