LIVE UPDATES: Jury in retrial of ex-Waco daycare owner shown photos of device to crush pills in cabinet above infant formula

WACO, Texas (KWTX) - State prosecutors who allege former Waco day care owner Marian Fraser gave a 4-month-old girl in her care a fatal dose of diphenhydramine showed jurors photos Thursday of an over-the-counter antihistamine, a device to crush pills and a set of scales in a cabinet above where Fraser stored the infant formula.

Prosecutors Tara Avants and Will Hix have called nine witnesses during the first two days of testimony in Fraser’s murder retrial in the death of Clara Felton, who died in March 2013 at Fraser’s former Spoiled Rotten day care on Hilltop Drive.

Fraser, 59, remains free on bond after her conviction and 50-year sentence from her first trial in 2015 were overturned by the Texas Court of Criminal Appeals because of improper jury instructions.

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

Prosecutors allege Fraser gave Clara Benadryl or another medicine containing diphenhydramine so she would nap better in the afternoon. Other children at Fraser’s day care also tested positive for diphenhydramine after Clara’s death, but those results are not admissible at Fraser’s retrial because the owner of the lab where the hair samples were tested has since been sanctioned and his lab decertified by the Texas Forensic Sciences Commission.

In prosecution testimony Thursday, Mary Becerra, an investigator with the Texas Department of Family and Protective Services, which licenses day cares, said she interviewed Fraser; Fraser’s employee, Sherri Adams; former Waco police Detective Mike Alston; and Clara’s parents, Loren and Perry Felton, as part of her investigation after Clara’s death.

She said she did not interview the child’s grandfather, McLennan County Judge Scott Felton. Defense attorneys Christy Jack and Lettie Martinez have asked several witnesses if the case was given special consideration because Felton is county judge. They all said no.

During Becerra’s testimony, Hix introduced photos she took of Fraser’s home, including shots of kitchen cabinets that contained prescription medication, liquid Melatonin, allergy and fever relief and other items.

Hix focused on a bottle of Equate, an over-the-counter allergy medicine that contains diphenhydramine, on a kitchen shelf. Above that was what Hix identified as a pill crusher/pulverizer and a set of scales, which were on a shelf directly above where Fraser stored the baby formula.

Becerra said she wasn’t aware that the round blue item was a pill crusher and said she didn’t notice the scales. If she had, she said, she would have asked Fraser about them and likely would have reported it to Detective Alston.

After her investigation, Becerra said she cited Fraser for abuse or neglect of Clara, for using poor judgment and for having one more child than she was licensed for. Before that, Spoiled Rotten had not been cited for a major violation in the 24 years Fraser operated it, Becerra’s supervisor, Elaine Gatewood, testified.

Gatewood said she arrived at Fraser’s house about 9:45 p.m. March 4, 2013, about six hours after Clara was declared dead. She said Fraser was not required to let her into her home at that time of night but allowed her to enter and was cooperative. Fraser answered her questions, which Gatewood recorded and prosecutors played for the jury.

Fraser denied giving Clara any medication that day and said she was unaware if Clara’s parents had done so. With regard to the citations, Gatewood confirmed during cross-examination that her agency’s burden of proof is lower than the beyond reasonable doubt standard required for a conviction in criminal cases.

In other testimony Thursday, Elizabeth Ventura, a pathologist at the Southwestern Institute of Forensic Sciences in Dallas, testified about Clara’s autopsy and her finding that Clara died from a fatal dose of diphenhydramine, with the manner of death being homicide.

Ben Adams, the husband of Fraser’s former employee, Sherri Adams, testified that he was interviewed by Detective Alston about a conversation he had with Marian Fraser and her husband, Gary, after the baby’s death.

Prosecutors played a video of Adams’ interview with the detective in which he said the Frasers told him that the babies are given Benadryl about 9 a.m. and again sometime later in the day. Adams said Marian Fraser told him she gave the babies Benadryl.

Jack asked Adams if he were fearful or intimidated by the detective. Adams said he wasn’t intimidated, although he conceded that Alston, who warned him about withholding evidence in a murder case, was a bit imposing.

Prosecution testimony is set to resume Friday morning.

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