FRASER, MARIAN v. the State of Texas

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. PD-0964-24

MARIAN FRASER, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE SEVENTH COURT OF APPEALS
McLENNAN COUNTY

FINLEY, J., delivered the opinion of the unanimous
Court as to Parts I, II, and IV, and the opinion of the Court
as to parts III and V in which RICHARDSON, NEWELL, KEEL,
WALKER, and MCCLURE, JJ., joined. FINLEY, J., filed a
concurring opinion. YEARY, J., filed a concurring and
dissenting opinion in which SCHENCK, P.J., and PARKER, J.,
joined. PARKER, J., filed a concurring and dissenting
opinion.
FRASER — 2

OPINION

This case returns to us after Appellant’s retrial and conviction for felony

murder. Appellant operated a daycare center for infants. Four-month-old C.F.

died in Appellant’s care. Toxicology tests revealed a toxic level of

diphenhydramine in C.F.’s blood.

Appellant raises three arguments. First, she challenges the sufficiency

of the evidence for her felony murder conviction, specifically whether giving

diphenhydramine to a four-month-old infant is an act clearly dangerous to

human life. Second, she contends that the court of appeals erred when

evaluating her pre-trial motion to suppress evidence obtained from electronic

devices that were seized when officers searched Appellant’s home. Third, she

argues that the court of appeals improperly relied upon Texas Rule of Evidence

105 when it held that she did not preserve objections to extraneous offense

evidence admitted at trial.

We hold that there is legally sufficient evidence to support Appellant’s

conviction of felony murder. We conclude that the probable cause affidavit

accompanying the warrant to seize the electronic devices and the probable

cause affidavit accompanying the warrant to search the electronic devices both

lack a sufficient nexus between the offense and the electronic devices seized

and searched. We further conclude that the court of appeals erred in relying
FRASER — 3

upon Texas Rule of Evidence 105 in determining whether Appellant’s

objections were preserved.

Accordingly, we affirm in part and reverse in part the judgment of the

court of appeals and remand the case for proceedings consistent with this

opinion.

I. Background

Appellant was charged with the felony murder of C.F., 1 a four-month-

old, at Appellant’s Waco day care. The State’s theory at trial was that

Appellant administered a lethal dose of diphenhydramine to C.F. in C.F.’s baby

formula bottle, causing C.F.’s death. Appellant was convicted and sentenced to

fifty years’ confinement. On direct appeal, the court of appeals reversed. Fraser

v. State (Fraser I), 523 S.W.3d 320, 342 (Tex. App.—Amarillo 2017). This Court

granted the State’s petition for discretionary review and reversed the judgment

of the court of appeals. Fraser v. State (Fraser II), 583 S.W.3d 564, 571 (Tex.

Crim. App. 2019). On remand, the court of appeals found egregious harm in

the jury instructions, reversed the judgment of the trial court, and remanded

for a new trial. Fraser v. State (Fraser III), 593 S.W.3d 883, 894 (Tex. App.—

Amarillo 2019, pet. ref’d).

1 We use the same abbreviation as the court of appeals to identify the infant victim.
FRASER — 4

Appellant was retried. After her second trial, she was convicted and

sentenced to fifty years’ confinement. On direct appeal of her retrial, the court

of appeals affirmed. Fraser v. State (Fraser IV), No. 07-23-00131-CR, 2024 WL

4363741, at *13 (Tex. App.—Amarillo Oct. 1, 2024) (mem. op., not designated

for publication). We granted Appellant’s petition for discretionary review on

three grounds. 2

II. Sufficiency of the Evidence

a. Applicable Law

i. Sufficiency of the Evidence

We review a challenge to the sufficiency of the evidence under the

2 The following grounds of Appellant’s Petition for Discretionary Review were
granted:

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.

3) 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.

5) 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.

The Court refused Appellant’s second and fourth grounds for review.
FRASER — 5

standard of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks

v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). Evidence is legally

sufficient to support a conviction if, when viewing all of the evidence in the

light most favorable to the verdict, any rational juror could have found the

essential elements of the crime beyond a reasonable doubt. McPherson v. State,

677 S.W.3d 663, 664 (Tex. Crim. App. 2023); Jackson, 443 U.S. at 319.

When conducting a sufficiency review, we consider all of the evidence

admitted at trial, including pieces of evidence that may have been improperly

admitted. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013);

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We do not sit as

the thirteenth juror, and we do not substitute our judgment for that of the

factfinder by reevaluating the weight and credibility of the evidence. Edwards

v. State, 666 S.W.3d 571, 574 (Tex. Crim. App. 2023). The jury is permitted to

draw reasonable inferences from the evidence adduced at trial. Metcalf v. State,

597 S.W.3d 847, 855 (Tex. Crim. App. 2020). Additionally, the jury may use

common sense, common knowledge, personal experience, and observations

from life when drawing inferences. Acosta v. State, 429 S.W.3d 621, 625 (Tex.

Crim. App. 2014).

The sufficiency of the evidence is measured against the hypothetically-

correct jury charge, defined by the statutory elements as modified by the
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charging instrument. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997). The hypothetically-correct jury charge is one that accurately states the

law, is authorized by the indictment, does not increase the State’s burden of

proof, and adequately describes the offense with which the defendant is

charged. Id.

ii. The charged offense

Appellant was convicted of felony murder under Section 19.02(b)(3) of

the Penal Code. Section 19.02(b)(3) provides:

(b) A person commits an offense if the person:

(3) commits or attempts to commit a felony, other than
manslaughter, and in the course of and in furtherance of the
commission or attempt, or in immediate flight from the
commission or attempt, the person commits or attempts to
commit an act clearly dangerous to human life that causes
the death of an individual.

TEX. PENAL CODE § 19.02(b)(3).

Count 1 of Appellant’s indictment alleged that she:

did then and there commit or attempt to commit an act clearly
dangerous to human life, namely, by administering
diphenhydramine to [C.F.] and/or causing [C.F.] to ingest
diphenhydramine, which caused the death of [C.F.], and the said
Defendant was then and there in the course of or attempted
commission of a felony, to-wit: Injury to a Child [or Endangering a
Child].

For purposes of felony murder, the State must prove: (1) an underlying

felony, (2) an act clearly dangerous to human life, (3) the death of an individual,
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(4) causation (the dangerous act causes the death), and (5) a connection

between the underlying felony and the dangerous act (“in the course of and in

furtherance of . . . or in immediate flight from”). Contreras v. State, 312 S.W.3d

566, 583–84 (Tex. Crim. App. 2010). Felony injury to a child qualifies as an

underlying felony in a felony murder prosecution. See id. (citing Johnson v.

State, 4 S.W.3d 254, 258 (Tex. Crim. App. 1999)).

An “act” is a voluntary or involuntary bodily movement. TEX. PENAL

CODE § 1.07(a)(1). When determining whether an act is clearly dangerous to

human life, we use an objective standard, rather than analyzing the subjective

belief of the actor. Lugo-Lugo v. State, 650 S.W.2d 72, 81 (Tex. Crim. App. 1983)

(“Since an act that was intended to cause serious bodily injury may not have

been intended to be clearly dangerous to human life, the statute requires that

the character of the act be measured by an objective standard.”). There is no

culpable mental state required for the act clearly dangerous to human life

element of felony murder. Lomax v. State, 233 S.W.3d 302, 305 (Tex. Crim.

App. 2007). “[T]he very essence of [felony murder] is to make a person guilty of

an ‘unintentional’ murder when he causes another person’s death during the

commission of some type of a felony.” Id.
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The injury to a child statute, Section 22.04 of the Penal Code, provides:

(a) A person commits an offense if he intentionally, knowingly,
recklessly, or with criminal negligence, by act or intentionally,
knowingly, or recklessly by omission, causes to a child . . . :

(1) serious bodily injury;

(2) serious mental deficiency, impairment, or injury; or

(3) bodily injury.

TEX. PENAL CODE § 22.04(a).

Count 2 of Appellant’s indictment alleged that she:

did intentionally or knowingly cause serious bodily injury to [C.F.],
a child younger than 15 years of age by administering
diphenhydramine to [C.F.] and/or causing [C.F.] to ingest
diphenhydramine.

“‘Child’ means a person 14 years of age or younger. Id. § 22.04(c)(1).

“‘Bodily injury means physical pain, illness, or any impairment of physical

condition. Id. § 1.07(a)(8). “‘Serious bodily injury’ means bodily injury that

creates a substantial risk of death or that causes death, serious permanent

disfigurement, or protracted loss or impairment of the function of any bodily

member or organ. Id. § 1.07(a)(46). The culpable mental states for injury to a

child carry the definitions in Section 6.03 of the Penal Code. See id. § 6.03(a)–

(d).
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b. Evidence at trial

Appellant was the owner of Spoiled Rotten Day Care in Waco. The day

care exclusively accepted children between the ages of six weeks and three

years of age. Appellant’s day care had certain “health policies” that related to

medication usage:

1) Parents were to put their child’s medication in a baggy when
dropping off the child.

2) Parents were required to fill out medication slips before
bringing medication.

3) For non-prescription medication, parents were required to
provide Appellant written instructions for administration.

Another clause of the day care’s policies required that parents not schedule

appointments for the children during the time of 12:30 to 3:00 p.m. every day,

to avoid disrupting naptime.

During the afternoon of March 4, 2013, Appellant found C.F.

unresponsive during a nap. She attempted CPR, called 9-1-1, but C.F. could

not be resuscitated. During the ensuing police investigation on the night of

C.F.’s death, law enforcement found written records in Appellant’s home 3

documenting when the children were fed and when they were put down for a

nap. C.F.’s records showed that she was last fed at 11:15 a.m. on the day of her

3 Appellant operated Spoiled Rotten Day Care at her home.
FRASER — 10

death, was fed approximately six ounces of baby formula, and was put down

for a nap at 12:15 p.m.

Justin Schwane, the toxicology laboratory supervisor at the Dallas

County Southwestern Institute of Forensic Sciences (SWIFS), performed the

final review of the postmortem toxicology testing of C.F.’s blood. Schwane

testified that C.F.’s blood was positive for 1.3 milligrams per liter of

diphenhydramine. He also testified that a second round of testing was

performed in May of 2014 to test the amount of diphenhydramine in C.F.’s

skeletal muscle and urine. C.F.’s skeletal muscle tested positive at 1.4

milligrams per kilogram of diphenylamine, and C.F.’s urine tested positive at

4.1 milligrams per liter of diphenhydramine. Schwane further testified that a

therapeutic range of diphenhydramine in adults was between 0.1 to 0.2

milligrams per liter of blood, far below the amount of diphenhydramine in

C.F.’s blood. Schwane also testified that, had diphenhydramine been

administered to C.F. prior to arriving at the day care, she would have been

experiencing symptoms—e.g., lethargy and tiredness—when she arrived at the

day care.

Dr. Elizabeth Ventura, a medical examiner with SWIFS, performed

C.F.’s autopsy the day after her death. She testified that the level of

diphenhydramine in C.F.’s postmortem blood was a fatal level for a four-
FRASER — 11

month-old infant. Dr. Ventura emphasized that a four-month-old like C.F. has

an underdeveloped liver, because an infant’s liver does not fully develop under

two years of age. According to Dr. Ventura, medications that contain

diphenhydramine, such as Benadryl, carry a warning label that instructs users

not to administer the drug to infants under the age of two because doing so

could cause death. On cross-examination, Dr. Ventura conceded that she could

not testify with any certainty when and how the diphenhydramine in C.F.’s

blood was administered, or whether it was administered in one large dose or

several smaller doses.

Mary Becerra, a childcare regulation supervisor for the Department of

Family and Protective Services, testified about pictures she took at Spoiled

Rotten during an inspection visit on April 30, 2013, a week before C.F.’s death.

As part of her investigation, Becerra took several photographs, and those

photographs were admitted into evidence. While viewing the photographs that

she took, Becerra noted several bottles of medication in the home, including

liquid melatonin, children’s Ibuprofen, and an Equate-branded bottle. The

Equate-branded bottle treated allergy relief, and one of its active ingredients

is diphenhydramine. Becerra also testified that Appellant kept a pill crusher,

the “Pill Crusher Pulverizer Grinder,” and a scale in the kitchen cabinet

immediately above where Appellant stored baby formula.
FRASER — 12

Sherri Adams testified that she worked at Spoiled Rotten Day Care with

Appellant at the time of C.F.’s death. Adams testified that she and Appellant

were the only two employees of the day care. Adams testified about how the

infants’ bottles were prepared and who fed the infants. Appellant would label

the bottles and microwave them in the kitchen. Then, Appellant would place

the bottles for Adams in a window that connected the kitchen to the playroom.

Adams testified that Appellant would tell her when to feed each child, and that

the schedule for feeding the children was followed rigorously and rarely

changed day-to-day. Adams testified that Appellant filled out the daily sheets

for each child that indicated their feeding and nap times. Adams further

testified that the babies at Spoiled Rotten “slept more” than the babies she

cared for at Central Faith Child Development Center, a daycare facility in

Waco that started working at after Spoiled Rotten was shut down.

Adams testified that, except for one occasion, Appellant was responsible

for administering medication to the children. She testified that the medication

was kept in a locked cabinet in the playroom where the children napped, and

that only she and Appellant had access to the cabinet. Adams testified that on

the day of her death, C.F. appeared “okay” according to “her little normal

routine” and “wasn’t fussy” when she arrived. Adams denied ever giving C.F.

medication containing diphenhydramine. Adams testified that ordinarily
FRASER — 13

Appellant would clean up the kitchen and wash the bottles during the

children’s nap times, but there were at least some occasions when she cleaned

the bottles. She also admitted that she never saw any medicine like Benadryl

in the kitchen. When asked about Appellant’s reaction to discovering C.F.

unresponsive, Adams recounted that Appellant was frantic, worried, and

upset.

Katrina Filz, a former employee of Appellant, testified about Appellant’s

patterns and practices at Spoiled Rotten during her employment. The State

used Filz’s testimony to demonstrate that her experience working for

Appellant was like Adams’s. Filz testified that she worked for Appellant for

nearly six years as an assistant. Like Adams, Filz testified that Appellant

prepared the bottles most of the time. Occasionally, for example, “if [Appellant]

had a doctor’s appointment that she had to go to or something like that, [Filz]

would be responsible . . . for making bottles unless they were already made

or . . . like[] warming up breast milk or whatever [Filz] had to do.” Filz testified

that she only gave medicine to the children if Appellant handed it to her

“through [the] window.” Filz also testified that the children at the day care

followed a routine identical to the one Adams described. Like Adams, Filz

testified that the children under Appellant’s care slept “more” than children at

other childcare locations she had worked at.
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Dr. Patricia Wilcox, a board-certified family medicine doctor in Waco,

testified that she was C.F.’s primary care doctor. She testified that on February

19, 2013, she saw C.F. for C.F.’s four-month examination and that C.F. was

“perfectly normal.” This doctor’s visit occurred thirteen days before C.F.’s

death on March 4, 2013. When questioned about diphenhydramine, Dr. Wilcox

testified that she never recommended or prescribed it for C.F. because of the

risk of death associated with diphenhydramine. Dr. Wilcox testified that, in

her expert opinion, administering diphenhydramine to a four-month-old was

an act clearly dangerous to human life, particularly because “the dosing can be

tricky.” As Dr. Wilcox elaborated, too much diphenhydramine can cause

lethargy, fatigue, seizures, vomiting, diarrhea, and fatal heart anomalies. Dr.

Wilcox testified that crushing Benadryl pills would quicken the body’s

absorption of diphenhydramine. Dr. Wilcox also testified that, while Benadryl

pills are typically pink, crushing the pills turns them into a white powder,

which mirrors the color of a bottle of baby formula. 4 Based on C.F.’s “daily card”

maintained by Appellant at the day care, which specified when C.F. napped

and was fed on the date of her death, Dr. Wilcox theorized that the fatal dose

of diphenhydramine was administered to C.F. during her last bottle feeding at

4 In fact, Dr. Wilcox used a pill crusher, an Avent baby bottle filled with water, baby

formula, and a Benadryl pill, to demonstrate this to the jury.
FRASER — 15

approximately 11:15 a.m. On cross-examination, Dr. Wilcox testified that she

did not know of any doctor who had prescribed diphenhydramine to an infant

under the age of two and, if there was, then that doctor was not following

medical guidelines that have been established for years. Based on the amount

of diphenhydramine in C.F.’s autopsy’s findings, Dr. Wilcox opined that C.F.

was being exposed to a “regular, consistent exposure of diphenhydramine.” Dr.

Wilcox also testified that she never prescribed Tylenol or Motrin to C.F.

Appellant did not testify in this trial. Rather, portions of Appellant’s

testimony from her first trial were admitted and read to the jury. Appellant

testified that it had always been her normal process to text parents about what

medication their children needed or her opinion of whether the child needed

medication. Evidence of a text conversation on February 20, 2013, between

Appellant and C.F.’s mother, Lauren Felton, was introduced and reflected that

the two discussed C.F. running a fever after receiving her four-month shots.

Lauren told Appellant that she had given C.F. half a teaspoon of Tylenol and

a quarter teaspoon of Motrin. Appellant asked Lauren whether the doctor

prescribed C.F. Motrin, to which Lauren replied that she “didn’t ask.” Lauren

brought Motrin and children’s Tylenol to Spoiled Rotten, and Appellant

administered the drugs as Lauren requested. Appellant admitted to preparing
FRASER — 16

the babies’ bottles either the night before or the day of. Unlike Adams’s

testimony, Appellant testified that Adams would heat the babies’ bottles.

Appellant testified that on the day of C.F.’s death she put C.F. down for

a nap around 12:00 – 12:15 p.m. and checked on her every fifteen minutes three

times. On her third check, Appellant observed C.F. asleep. Approximately

ninety minutes later, around 2:30 to 2:40 p.m., Appellant received a phone call

from a parent who needed to pick up her child early. After receiving that call,

Appellant returned to the room and found that C.F. had totally rolled over and

thrown up. C.F. was unresponsive. Appellant started compressions and CPR

and asked Adams to call 9-1-1. Medical personnel were unable to resuscitate

C.F.

Appellant admitted that four days after C.F.’s death, she told her

daughter, Logan Fraser Hayes, by text message, to move medications—

including Tylenol, Motrin, and diphenhydramine—from the playroom cabinet

to a closet before a state licensing board inspector could visit the house. 5

Appellant denied administering C.F.—or any of the other children—

diphenhydramine because “they were all too young.” On cross-examination,

the following exchange occurred:

5 The text messages read: “Ok. Do me a favor. The kids’ medicine is in the cabinet in

the day care. Go put it in your closet” and “Just in case she looks.”
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Q: (by the State) And you’re pretty knowledgeable
about medicine, aren’t you?

A: (Appellant) Yes.

Q: I mean, you can read the labels?

A: Yes.

Q: Right. And you had even told how
you corrected Lauren when she was
trying to give [C.F.] Motrin?

A: Yes.

Q: So do you think it’s an act clearly
dangerous to human life to give
diphenhydramine to a 4-month-old?

A: Yes.

Q: And why is that?

A: Because you’re not supposed to give
it to them under 2 years of age.

(Emphasis added). Appellant also admitted on cross-examination that she was

the person who made the bottles, only she and her husband would have had

the opportunity to put diphenhydramine in C.F.’s bottle, and that there was

Benadryl in the house for Appellant’s dog. Appellant’s veterinarian had

prescribed Benadryl for her dog. The veterinarian recommended that

Appellant purchase the children’s liquid version because it is easier to

administer to small dogs, but Appellant opted for the tablet version.
FRASER — 18

Several parents with children at Appellant’s day care testified as well.

Two parents, Chris Bullajian and Julie Ingham, testified that they sent

children’s liquid Benadryl to the day care for treatment of their children’s

medical conditions. Both testified that their pediatricians prescribed liquid

Benadryl along with a specific dosage amount. The parents gave liquid

Benadryl to Appellant to administer to their children and provided her with

their respective pediatrician’s administration instructions. Several other

parents testified that their children experienced symptoms consistent with

diphenhydramine exposure while attending Appellant’s day care. And through

another parent, the State admitted text messages from Appellant:

[Appellant]: Have you gotten a call from the
detective?

[Parent]: What’s going on?

[Appellant]: I think he’s just wanting to talk to
y’all. Remember, I don’t give
medicine.

Both of C.F.’s parents testified. Her father, Perry Felton, denied giving

her diphenhydramine or consenting to anyone giving her diphenhydramine.

Lauren testified that neither she nor Perry ever gave C.F. medication

containing diphenhydramine. She also testified that no one else in her family

had given C.F. medication containing diphenhydramine. Lauren testified that

C.F. was absent from Spoiled Rotten the Friday before her death because they
FRASER — 19

had family photos. Lauren did not notice anything unusual about C.F.’s

behavior either the weekend preceding her death or the day of her death. On

cross-examination, Lauren was questioned about bringing Motrin and

children’s Tylenol to Spoiled Rotten. Under Lauren’s instructions, they were to

be administered to C.F. by Appellant. Lauren clarified that she followed Dr.

Wilcox’s instructions and that “just like Benadryl, if [Motrin’s] given under a

doctor’s orders,” then it is okay.

c. Analysis

The evidence presented at trial, when viewed in the light most favorable

to the verdict, was sufficient for a rational juror to find beyond a reasonable

doubt that Appellant gave C.F. diphenhydramine and that doing so was an act

clearly dangerous to human life that caused C.F.’s death.

Based on Dr. Wilcox’s testimony, a rational juror could believe, beyond a

reasonable doubt, that the fatal dose of diphenhydramine was administered to

C.F. via her bottle at 11:15 a.m. on the morning she died. Although everyone

uniformly denied administering C.F. diphenhydramine, a rational juror could

believe, based on Adams and Filz’s testimonies, that only Appellant would

have been responsible for the preparation of the bottle by which the

diphenhydramine was administered. Filz testified that Appellant ordinarily

prepared and heated the babies’ bottles and would then give the bottles to her
FRASER — 20

to feed the babies. So, too, did Adams. Appellant even admitted that she alone

prepared the bottles every day. Appellant did contend that Adams would heat

the bottles, thereby opening the possibility that Adams could have added the

diphenhydramine to C.F.’s bottle before her feeding. But the jury was free to

discredit Appellant’s testimony, because Adams and Filz both testified that

they were typically uninvolved with the bottle preparation process. According

to Adams, Appellant prepared the older children’s drinks, too. Based on these

facts, the jury could reasonably determine that Appellant retained unilateral

control over what the children drank, which positioned her to drug C.F.’s bottle

with diphenhydramine. The cumulative force of the circumstantial evidence

would allow a rational juror to disbelieve Appellant’s testimony in which she

denied administering diphenhydramine to C.F. and to credit C.F.’s parents’

testimonies in which they denied the same.

Likewise, the jury could disregard Appellant’s purported reason for

having diphenhydramine in her kitchen cabinet. Appellant testified that she

chose to use half a pill instead of the liquid version of Benadryl because her

dog would not drink it, and “it was just easier to take half a pill – a pill and

half it and put it in a hot dog.” This testimony, however, would not assuage the

jury as to why she kept a Pill Crusher Pulverizer Grinder and a scale in her

kitchen cabinet immediately above where she stored baby formula, neither of
FRASER — 21

which would be necessary to split a pill in half and place it in a hot dog. Her

story loses further credibility when considered in conjunction with Filz’s and

Adams’s testimonies that Appellant prepared the babies’ bottles in the

kitchen—the same kitchen with the Pill Crusher Pulverizer Grinder, scale, and

diphenhydramine. When combined, these facts support the jury’s conclusion

that Appellant administered diphenhydramine to C.F. in her baby bottle.

The jury was also free to consider the suspicious nature of the babies’

regimented sleep schedule. After leaving Spoiled Rotten, Filz noticed a marked

difference between the sleep schedules of babies under Appellant’s care and

those cared for by others. Babies under Appellant’s care maintained a strict

sleeping schedule, while babies under the care of others did not. Filz, Adams,

and even Appellant felt free to leave the Spoiled Rotten babies unsupervised

while napping for extended periods of time. On the day of C.F.’s death,

Appellant waited anywhere from 90 to 105 minutes before checking the babies

after C.F. fell asleep. The only reason Appellant returned to the room was

because a parent wanted to pick up their child early. And during the interim,

C.F. had “totally rolled over and thrown up.” An effect of diphenhydramine is

causing drowsiness, and it is often used as a sleeping aid. The jury could

rationally infer that Appellant felt free not to check on the children because

the diphenhydramine she dosed their bottles with would keep them asleep.
FRASER — 22

Based on the cumulative force of this evidence, a rational juror could

conclude, beyond a reasonable doubt, that Appellant administered C.F. a lethal

dose of diphenhydramine via C.F.’s bottle the morning of C.F.’s death. This was

sufficient to support a finding of guilt for felony injury to a child. The evidence,

when viewed in the light most favorable to the verdict, was sufficient to support

the jury’s conclusion that Appellant recklessly administered diphenhydramine

to C.F., causing her serious bodily injury—in this case, death.

A rational juror could also conclude, beyond a reasonable doubt, that

administering diphenhydramine to C.F. was an act clearly dangerous to

human life. Dr. Wilcox testified as much on direct examination. Dr. Wilcox

testified that administering diphenhydramine to children under the age of two

years old in any amount could cause lethal cardiac and pulmonary symptoms

due to underdeveloped livers. Moreover, both she and Dr. Ventura, the medical

examiner who performed C.F.’s autopsy, emphasized the warning labels on

Benadryl that indicated that diphenhydramine should not be administered to

infants under the age of two because of the deadly effects of doing so. Dr.

Ventura further testified that the amount of diphenhydramine in C.F.’s

postmortem blood was a lethal dose and was the cause of C.F.’s death.

The jury could have also concluded that Appellant dosed C.F.’s bottle

with powdered pills containing diphenhydramine without parental consent. In
FRASER — 23

fact, Appellant’s prior experience with Bullajian and Ingham’s children

indicates that she knew of the inherent danger associated with administering

diphenhydramine to an infant. Those parents allowed Appellant to administer

diphenhydramine to their respective children only because a doctor prescribed

it. In this limited situation, the infants were allowed to ingest a specified

amount of liquid Benadryl. While Appellant had those prior experiences, the

jury was presented with evidence that Appellant treated C.F. differently—

Appellant was weighing powdered Benadryl on a scale and then mixing it into

C.F.’s bottle, all without parental consent or a doctor’s prescription. And

Appellant admitted that giving diphenhydramine to a four-month-old was an

act clearly dangerous to human life because “you’re not supposed to give it to

them under 2 years of age.” A rational juror could have taken this testimony

at face value and believed that Appellant knew of the dangers of dosing an

infant with diphenhydramine before C.F.’s death. It seems dubious to believe

that Appellant knew that Motrin is dangerous to children under two—as she

told Lauren—but not diphenhydramine.

Based on this evidence, a rational juror could conclude that Appellant,

when committing injury to a child, committed an act clearly dangerous to

human life by administering diphenhydramine to C.F.
FRASER — 24

d. Conclusion

When viewing the evidence in the light most favorable to the verdict, a

rational juror could find, beyond a reasonable doubt, that Appellant had

committed an act clearly dangerous to human life that caused the death of C.F.

while committing felony injury to a child against C.F. Brooks, 323 S.W.3d at

912; McPherson, 677 S.W.3d at 664; Jackson, 443 U.S. at 319. Consequently,

the evidence was sufficient to support Appellant’s judgment of conviction for

felony murder. The judgment of the court of appeals is affirmed in this respect.

III. Search Warrant

In her third point of error, Appellant argues that the court of appeals

erroneously failed to require a nexus between the crime and digital devices

seized from her home to substantiate a search warrant. On June 12, 2013, a

magistrate judge signed a search warrant that authorized police officers to

search Appellant’s residence and seize electronic devices and electronic storage

devices. Officers executed that warrant the next day and seized multiple

electronic devices. Later that month, the same magistrate judge issued a

search warrant that allowed those seized electronic devices to be forensically

searched by a qualified and certified technician. The probable cause affidavit

in support of the second search warrant contained essentially the same factual
FRASER — 25

averments as the first, with the addition of the electronic devices and electronic

storage devices seized pursuant to the first.

Appellant filed a pre-trial motion to suppress evidence obtained via those

search warrants. The trial court ruled that it would admit all information

found on the devices after the date of the offense. Later, the trial court allowed

Appellant to file a brief in which she re-urged her motion to suppress.

Appellant took issue with the “boilerplate” language used in the probable cause

affidavit. During another pre-trial meeting, the parties argued the motion. The

trial court reiterated its earlier ruling but agreed to make findings of fact in

support of the ruling. However, the trial court did not make those findings.

The court of appeals affirmed the trial court’s ruling. See Fraser IV, 2024

WL 4363741, at *5–8. The court agreed with Appellant that the affidavits

contained boilerplate language but concluded that “[t]he affidavit contained

sufficient particularized facts supporting a search of Appellant’s devices which

would be ‘likely to produce evidence in the investigation’ of C.F.’s death.” Id. at

*7–8. Consequently, the court of appeals held that the trial court did not abuse

its discretion when it admitted numerous text messages between Appellant

and her daughter just days after C.F.’s death. See id. at *8.

Appellant argues that the court of appeals erred because the probable

cause affidavits did not provide the magistrate judge with the requisite nexus
FRASER — 26

between the things to be searched and the alleged offense. We agree.

a. Applicable Law

Under the Fourth Amendment of the United States Constitution, “no

Warrants shall issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be searched, and the

persons or things to be seized.” U.S. CONST. amend. IV. “Probable cause exists

when, under the totality of the circumstances, there is a ‘fair probability’ that

contraband or evidence of a crime will be found at the specified location.” State

v. Duarte, 389 S.W.3d 349, 354 (Tex. Crim. App. 2012) (first citing Illinois v.

Gates, 462 U.S. 213, 238 (1983); and then citing State v. McLain, 337 S.W.3d

268, 272 (Tex. Crim. App. 2011)).

Probable cause “is a flexible, nondemanding standard.” Id. (citing

McLain, 337 S.W.3d at 272). It requires more than “mere conclusory

statements of an affiant’s belief.” Rodriguez v. State, 232 S.W.3d 55, 61 (Tex.

Crim. App. 2007) (citing Johnson v. State, 803 S.W.2d 272, 288 (Tex. Crim.

App. 1990), overruled on other grounds by Heitman v. State, 815 S.W.2d 681,

690 (Tex. Crim. App. 1991)). “An affiant must present an affidavit that allows

the magistrate to independently determine probable cause and the

‘magistrate’s action[s] cannot be a mere ratification of the bare conclusions of

others.’” Id. (quoting Johnson, 803 S.W.2d at 288). Stated another way, the
FRASER — 27

affidavit must “establish[] a sufficient nexus between criminal activity, the

things to be seized, and the place to be searched.” Bonds v. State, 403 S.W.3d

867, 873 (Tex. Crim. App. 2013).

When “reviewing a magistrate’s decision to issue a warrant, trial and

appellate courts apply a highly deferential standard in keeping with the

constitutional preference for a warrant.” McLain, 337 S.W.3d at 271 (quoting

Rodriguez, 232 S.W.3d at 61). “When in doubt, we defer to all reasonable

inferences that the magistrate could have made.” Id. 271 (quoting Rodriguez,

232 S.W.3d at 61). We should avoid invalidating “the warrant by interpreting

the affidavit in a hypertechnical, rather than commonsense, manner.” Id. at

272 (quoting Rodriguez, 232 S.W.3d at 59). Ultimately, “[t]he test is whether a

reasonable reading by the magistrate would lead to the conclusion that the four

corners of the affidavit provide a ‘substantial basis’ for issuing the warrant.”

Duarte, 389 S.W.3d at 354 (first citing Massachusetts v. Upton, 466 U.S. 727,

733 (1984); and then citing Rodriguez, 232 S.W.3d at 60).

b. The probable cause affidavits

Affiant, Waco Police Department Detective Michael Alston, averred the

following in the first search warrant affidavit:

On March 4, 2013 Affiant responded to Providence Hospital in
Waco, McLennan County, Texas. Once at Providence Hospital
Affiant found that [C.F.] a four month old infant had been found
unresponsive at the Spoiled Rotten Day Care located at 1725
FRASER — 28

Hilltop Drive, Waco, McLennan County, Texas. [C.F.] was
transported to Providence Hospital by ambulance where she was
pronounced dead shortly after arrival at the hospital.

Affiant was able to view the body of [C.F.] and saw no signs of
trauma or injury to her. Affiant was also able to speak with … the
parents of [C.F.], and found that [C.F.] had not been ill or having
any unusual medical problems prior to her death. Affiant learned
that (the mother) had taken [C.F.] to the Spoiled Rotten Day Care
at around 7:45 AM on March 4, 2013, where she gave [C.F.] to
Marian Fraser who is the owner/operator of Spoiled Rotten Day
Care. At the time that [C.F.] was dropped off at the day care by her
mother she was described as normal and fine.

Affiant was able to speak with Marian Fraser the owner/operator
of Spoiled Rotten Day Care. Marian Fraser told the Affiant that
[C.F.] was fine that day of March 4, 2013 when her mother dropped
her off at the day care. Marian Fraser told the Affiant that nothing
unusual had happened or occurred with [C.F.] that day. Marian
Fraser told the Affiant that [C.F.] was given her last bottle at
around 11:30 AM on March 4, 2013, and that she then was put into
her playpen to have a nap at around 12:30 PM. Marian Fraser told
the Affiant that at around 2:50 PM that [C.F.] was found
unresponsive in her playpen.

Affiant has learned from Marian Fraser that she operates the
Spoiled Rotten Daycare at 1725 Hilltop Drive in Waco, McLennan
County, Texas, and that this location is also her personal
residence.

The body of [C.F.] was sent to the Southwestern Institute of
Forensic Sciences in Dallas, Texas for an autopsy. Affiant has
received a copy of the Autopsy Report of the autopsy that was
conducted on [C.F.]. The findings of the autopsy are that the Cause
of Death of [C.F.] is from the Toxic Effects of diphenhydramine
(Benadryl). Affiant has spoken with Dr. Keith Pinkard, Medical
Examiner with the Southwestern Institute of Forensic Sciences.
Dr. Pinkard has explained to the Affiant that the effects of
diphenhydramine [C.F.] are fast acting. Dr. Pinkard has also told
that Affiant that with the information obtained in the Affiant’s
FRASER — 29

investigation that [C.F.] was fine and normal when she arrived at
the daycare, and was fine up to the time she was put down for her
nap; that she would have had to of [sic] be given the
diphenhydramine (Benadryl) while in the care and custody of the
daycare.

Affiant knows that it is common for persons to access the internet
for the purpose of obtaining drug information and reactions to
various drugs. Internet access can be gained by the use of a variety
of electronic devices to include but not limited to, computers,
laptop computers, cell phones, and electronic notebooks and net
books such as but not limited to iPads, e readers, and electronic
tablets. Affiant also knows that it is common for persons to send
electronic messages known as e mails, text messages, and to
keep/store messages sent to other persons and to themselves on
the above mentioned electronic devices and on electronic storage
devices such as thumb drives.

Affiant is asking for a Search Warrant to search Marian Fraser’s
residence also what was known as Spoiled Rotten Daycare located
at 1725 Hilltop Drive in Waco, McLennan County, Texas, and to
be allowed to search any and all motor vehicles that are parked on
the property of 1725 Hilltop Drive, to search for a [sic] to seize any
and all afore mentioned electronic devices and electronic storage
devices.

The police officers who executed the first search warrant seized the following

five items:

1- Apple iPhone 5 cell phone white in color with a pink otter box
(Marian Fraser’s cell phone)
1- Apple iPad silver in color with a red case
1- Apple iPhone black and silver in color
1- HP computer tower model P63 l 0y, serial number
MXX:001082C (Pavilion P63 l 0y PC)
1- Samsung cell phone red in color (Gary Fraser’s cell phone)
FRASER — 30

Twelve days after law enforcement seized those five devices, Detective

Alston applied for a second search warrant. This warrant sought to allow the

Waco Police Department Computer Forensic Laboratory to search the five

seized devices and allow a certified technician to then analyze the data. In his

second affidavit, Officer Alston reiterated, verbatim, the same factual

recitations that he included in his first affidavit. After reiterating those

recitations, he averred the following:

Affiant knows that a Forensic Search of the above listed electronic
property/evidence could reveal a history of internet searches,
electronic messages known as e mails that are sent and received,
text messages that have been sent and received, as well as
messages and or postings on internet social sites such as but not
limited to Facebook. A Forensic Search may also reveal stored
messages and or correspondence sent to others or to themselves.

Affiant believes that a Forensic Search of the above listed
electronic property/evidence that was seized on June 13, 2013 from
1725 Hilltop Dive in Waco, McLennan County, Texas may reveal
that Marian Fraser may have searched the internet after the death
of [C.F.] to obtain information on the side effects of
diphenhydramine (Benadryl) on infants and young children.
Affiant also believes that a Forensic Search of these devices may
reveal electronic mail messages, text messages, and or social
networking site messages such as Facebook that were either sent
or received by or to Marian Fraser that may contain information
about the death of [C.F.].

c. Analysis

In State v. Baldwin, this Court decided that mere “boilerplate language”

from a police-officer affiant “about cell phone use among criminals” is
FRASER — 31

insufficient alone to establish probable cause to search a cell phone. 664 S.W.3d

122, 134 (Tex. Crim. App. 2022). We also said that a warrant affidavit to search

a cell phone must “establish a nexus between the device and the offense” under

investigation. Id. at 123. We explained that, within the four corners of the

affidavit at issue there, “there [were] simply no facts . . . that tie[d Baldwin]’s

cell phone to the offense” and “nothing about the phone being used before or

during the offense.” Id. at 134–35.

Two years later, in Stocker v. State, we clarified how a warrant affidavit

to search a cell phone establishes the requisite nexus. 693 S.W.3d 385 (Tex.

Crim. App. 2024). An affidavit may, for example, aver “reliable information

suggesting that the criminal perpetrator ‘used’ that cell phone ‘before, during,

or after the crime’ that is being prosecuted.” Id. at 387 (quoting Baldwin, 664

S.W.3d at 135). However, that is not the only option. See id. at 388 (“[T]he

Court [in Baldwin] did not say there that ‘use’ of a cell phone in aid of the

actual perpetration of the crime that is on trial is, necessarily, the only ‘specific

fact’ that can serve to establish the required ‘nexus,’ ‘connection,’ or ‘tie’

between a cell phone and an offense under investigation.” (original emphasis)).

Showing that a cell phone’s owner used the phone before, during, or after the

crime being prosecuted is merely “[o]ne way to establish the required ‘nexus’

when it comes to a warrant affidavit to search a cell phone” and is “not always
FRASER — 32

required before a magistrate may find that a search warrant affidavit ‘state[s]

facts and circumstances that provide . . . probable cause to believe that . . .

searching the telephone . . . is likely to produce evidence in the investigation

of’ certain criminal activity.” Id. at 387–88 (quoting TEX. CODE CRIM. PROC. art.

18.0215(c)(5)(B)). 6

6 Judge Yeary would have us overrule Baldwin. Op. of Yeary, J., at 2 (“[T]he Court

itself errs, by relying upon the flawed reasoning and holding of Baldwin, which the
Court should immediately disavow.”). Judge Yeary posits that Baldwin conflicts with
Illinois v. Gates, 462 U.S. 213 (1983), Op. of Yeary, J., at 4–10, and with Riley v.
California, 573 U.S. 373 (2014), Op. of Yeary, J., at 11–14. But a careful examination
of Gates and Riley confirms that Baldwin is consistent with both Supreme Court
decisions.
Judge Yeary first contends that Baldwin is incompatible with Gates. In
Baldwin, this Court resolved the following question in the negative: “Is generic,
boilerplate language about cell phone use among criminals sufficient to establish
probable cause to search a cell phone?” 664 S.W.3d at 134. We then clarified that
“specific facts connecting the items to be searched to the alleged offense are required
for the magistrate to reasonably determine probable cause.” Id. That clarification is
of no surprise. A reasonable person would assume that to search a cell phone, the
government must substantiate its need with facts beyond an officer’s general training
and experience. Brinegar v. United States, 338 U.S. 160, 175 (1949) (“In dealing with
probable cause, however, as the very name implies, we deal with probabilities. These
are not technical; they are the factual and practical considerations of everyday life on
which reasonable and prudent men, not legal technicians, act.”). Contrary to Judge
Yeary’s understanding of Baldwin, Baldwin does not require facts beyond an officer’s
training and experience to separately demonstrate probable cause. Contra Op. of
Yeary, J., at 8. Rather, Baldwin recognized that generic boilerplate language alone
does not establish probable cause to search a cell phone. Thus, to demonstrate
probable cause, generic boilerplate language must be accompanied by other facts
“connecting the items to be searched to the alleged offense.” Baldwin, 664 S.W.3d at
134. This reasoning reflects the basic understanding that if general experience and
training alone fail to establish probable cause, then something more is needed. See
Gates, 462 U.S. at 239 (“sufficient information must be presented to the magistrate
to allow that official to determine probable cause; his action cannot be a mere
ratification of the bare conclusions of others.”) (emphasis added).
FRASER — 33

The State argues that there was more than just mere boilerplate

language in the search warrant affidavit to support the magistrate’s probable

cause finding to permit a seizure and search of the electronic devices from

Appellant’s home. We disagree.

There is nothing in the four corners of the affidavit, other than the

“boilerplate” language, that creates a “nexus” between the items to be seized—

the electronic devices in Appellant’s home—and the offense. The only factual

Judge Yeary next contends that Baldwin is incompatible with Riley. In his
view, because the Riley Court noted the prevalence of cell phone ownership among
American adults, and that cell phones serve as “a digital record of nearly every aspect
of their lives—from the mundane to the intimate,” 573 U.S. at 395, we should
“conclude that evidence of a criminal suspect’s crime will probably be found in the
phone [s]he keeps on or about h[er] person,” see Op. of Yeary, J., at 11–12. Such a per
se rule contradicts how “probable cause is a fluid concept—turning on the assessment
of probabilities in particular factual contexts.” Gates, 462 U.S. at 232 (emphasis
added). Probable cause, which is intertwined with the particular facts of a case,
cannot be supplied by generalities untethered to the case at bar. Cf. Riley, 573 U.S.
at 403 (“The fact that technology now allows an individual to carry such information
in his hand does not make the information any less worthy of the protection for which
the Founders fought.”). Under Baldwin’s nexus requirement, such generalities,
combined with some factual connection, establish probable cause. Making a factual
connection to the item to be searched is not an arduous task. Indeed, as the Riley
Court noted, “It would be a particularly inexperienced or unimaginative law
enforcement officer who could not come up with several reasons to suppose evidence
of just about any crime could be found on a cell phone.” Id. at 399. The discussion in
Riley hints at the ease with which an officer could provide a link between the cell
phone to be searched and the offense committed—in other words, a nexus. Yet, the
officer here and in Baldwin failed to include a link to justify the search.
Traditionally, we have only overruled a prior case when the case was badly
reasoned or is unworkable. Proctor v. State, 967 S.W.2d 840, 845 (Tex. Crim. App.
1998). Judge Yeary fails to make a compelling case that Baldwin meets either
criterion.
FRASER — 34

connection between Appellant’s electronic devices and the offense was the

affiant stating that he knew that it was “common” for persons to use cell phones

to communicate by text and phone call and to search the internet. Noticeably

absent from the warrant is any factual connection between Appellant’s

electronic devices and the offense. In fact, if one were to exclude the three

paragraphs beginning with “Affiant,” there is no mention of electronic

devices—either cell phones or computers—in the affidavit at all.

A bare assertion that “Affiant believes” that the seized devices “may

reveal that [Appellant] may have searched the internet after” C.F.’s death “to

obtain information on the side effects of diphenhydramine (Benadryl) on

infants and young children,” amounts to nothing more than mere speculation

and a fishing expedition for information. Affiant’s personal beliefs, without

more, provide no basis to support probable cause. In fact, “[i]t is

axiomatic . . . that mere affirmation of belief or suspicion is not enough to

sustain the issuance of a search warrant.” Tolentino v. State, 638 S.W.2d 499,

501 (Tex. Crim. App. [Panel Op.] 1982) (citing Nathanson v. United States, 290

U.S. 41 (1933)).

To the extent the State argues that the mere lengthy recitation of the

factual background of the offense saves this warrant, that argument fails. If

that were true, then the warrant in Baldwin—with its own lengthy factual
FRASER — 35

recitation—would have been valid. But, in Baldwin, only the following three

paragraphs tied the electronic devices to the offense:

Based on your Affiant’s training and experience, Affiant knows
that phones and “smartphones” such as the one listed herein, are
capable of receiving, sending, or storing electronic data and that
evidence of their identity and others may be contained within those
cellular “smart” phones. Affiant also knows it is possible to capture
video and photos with cellular phones. Further, Affiant knows
from training and experience that cellular telephones are
commonly utilized to communicate in a variety of ways such as text
messaging, calls, and e-mail or application programs such as
google talk or snapchat. The cellular telephone device, by its very
nature, is easily transportable and designed to be operable
hundreds of miles from its normal area of operations, providing
reliable and instant communications. Affiant believes that the
incoming and outgoing telephone calls, incoming and outgoing text
messaging, emails, video recordings and subsequent voicemail
messages could contain evidence related to this aggravated assault
investigation.

Additionally, based on your Affiant’s training and experience,
Affiant knows from other cases he [sic] has investigated and from
training and experiences that it is common for suspects to
communicate about their plans via text messaging, phone calls, or
through other communication applications. Further, Affiant
knows from training and experiences that someone who commits
the offense of aggravated assault or murder often makes phone
calls and/or text messages immediately prior and after the crime.

Affiant further knows based on training and experience, often
times, in a moment of panic and in an attempt to cover up an
assault or murder that suspects utilize the internet via their
cellular telephone to search for information. Additionally, based on
your Affiant’s training and experience, Affiant knows from other
cases he has investigated and from training and experiences that
searching a suspect’s phone will allow law enforcement officers to
learn the cellular telephone number and service provider for the
device. Affiant knows that law enforcement officers can then
FRASER — 36

obtain a subsequent search warrant from the cellular telephone
provider to obtain any and all cell site data records, including any
and all available geo-location information for the dates of an
offense, which may show the approximate location of a suspect at
or near the time of an offense.

664 S.W.3d at 126. The “boilerplate” language used by the affiant in Baldwin

at least used his “training and experience” to “know” that a search would lead

to evidence. And yet that language was insufficient. Whereas here, the “nexus”

was solely based on the affiant’s personal beliefs. In other words, nothing in

the warrant in this case sufficiently “state[s] facts and circumstances that

provide . . . probable cause to believe that . . . searching the telephone . . . is

likely to produce evidence in the investigation of certain criminal activity.” See

Stocker, 693 S.W.3d at 388 (quoting TEX. CODE CRIM. PROC. art.

18.0215(c)(5)(B)) (internal quotation marks omitted). Consequently, “the

affidavit contained insufficient particularized facts to allow the magistrate to

determine probable cause for a warrant to search the phone.” Baldwin, 664

S.W.3d at 135. Thus, the court of appeals erred when it held that the trial court

did not abuse its discretion in denying Appellant’s pre-trial motion to

suppress. 7

7 Judge Parker would have us adopt the Massachusetts Supreme Court’s reasoning

in Commonwealth v. Fernandes, 148 N.E.3d 361 (Mass. 2020), to the instant case. See
Op. of Parker, J., at 2. But Judge Parker’s reliance on Fernandes is problematic for
several reasons.
FRASER — 37

First, neither party—particularly the State—argues that Fernandes is
applicable in the instant case. And with good reason.
Second, to the extent that Judge Parker says that “similar considerations are
present” between the instant offense and a “domestic violence” offense like the one in
Fernandes, that assertion is not supported by the facts of each case. See Op. of Parker,
J., at 3. Fernandes dealt with a domestic partner homicide offense between two adults
where the defendant not only confessed to killing the victim but had a recent prior
domestic violence charge against the same victim. 148 N.E.3d at 373. The evidence
sought in Fernandes was limited to images in a digital camera from the home
obtained one day after the murder. Id. In this case, the State sought the evidence
obtained here three months after C.F.’s death. Unlike the defendant in Fernandes,
who had a pending charge of assault and battery of the same victim a few months
prior, Appellant did not have a pending charge against anyone, let alone one involving
caregiving violence or one involving caregiving violence against C.F. Finally, unlike
here, the defendant in Fernandes admitted to killing the victim. Id.
Third, to the extent that Judge Parker argues that “communications,”
“records,” and “information” relevant to the offense could be found in the electronic
devices, that is mere speculation. See Op. of Parker, J., at 3. In Massachusetts, the
government must “demonstrate a ‘nexus’ between the crime alleged and the article to
be searched or seized.” Commonwealth v. White, 59 N.E.3d 369, 374 (Mass. 2016)
(cleaned up). When a “computer-like device, such as a cellular telephone” is the object
of a warrant, the nexus requirement demands more than the mere opinions of the
investigating officers. Id. at 375. The police must know of “‘particularized evidence’
related to the crime,” and the police must “believe, based on training or experience,
that this ‘particularized evidence’ is likely to be found on the device in question.” Id.
The first warrant fails both requirements; the second warrant fails the first
requirement. To justify the search of Appellant’s residence and the seizure of the
electronic devices discovered, the first affidavit averred that C.F. was under
Appellant’s care when she died, C.F. died from diphenhydramine, affiant knows that
it is common for people to access the internet, and affiant knows that it is common
for people to store electronic messages on electronic storage devices. There was
nothing in the first warrant that indicated a reason to believe that a particular piece
of evidence related to C.F.’s death was on Applicant’s electronic devices. In fact,
Appellant’s electronic devices were not mentioned at all other than in the recitation
of the affiant’s personal experience. See id. at 376 (“[E]ven where there is probable
cause to suspect the defendant of a crime, police may not seize or search his or her
cellular telephone to look for evidence unless they have information establishing the
existence of particularized evidence likely to be found there.”). The second affidavit
fails for similar reasons. The affiant generally averred that searching the seized
electronic devices, including Appellant’s phone, could reveal electronic searches
relating to diphenhydramine’s effects on children, and could reveal that electronic
FRASER — 38

d. Harm

Texas Rule of Appellate Procedure 44.2(a)’s constitutional error

standard applies when evidence obtained in violation of the Fourth

Amendment is erroneously admitted. Hernandez v. State, 60 S.W.3d 106, 108

(Tex. Crim. App. 2001). Under this “harmless error review, the court of appeals

must reverse a judgment of conviction or punishment unless the court

determines beyond a reasonable doubt that the error did not contribute to the

conviction or punishment.” TEX. R. APP. P. 44.2(a). The court of appeals should

make this determination on remand.

IV. Preservation of error

In her first point of error, Appellant challenges the court of appeals’

conclusion that she did not preserve error when she objected to the admission

of extraneous offense evidence during her retrial. The State and Appellant both

messages were sent that may contain information about C.F.’s death. This affidavit,
like the first, “lack[s] any information establishing the existence of evidence likely to
be found on the [Appellant’s] cellular telephone.” See id. at 377. Thus, even under
another state’s Fourth Amendment jurisprudence, the warrants lack probable cause.
Fourth, and finally, the warrant at issue in Fernandes authorized officers to
search a digital camera. 148 N.E.3d at 371-72. As already discussed, Massachusetts’s
nexus requirement for cellphones is greater than those of other electronic devices.
The privacy interests at issue in Fernandes were lower than those in White. Cf. White,
59 N.E.3d at 377 n.11 (noting that cellphones with “enhanced capabilities of a
‘smartphone’ . . . implicate even greater privacy concerns” (citing Riley, 573 U.S. at
396–97)). In sum, reliance on Fernandes, whether in the lens of Texas law or
Massachusetts law, is misplaced.
FRASER — 39

agree that the court of appeals erred. In her first trial, the State introduced

hair follicle test results showing the presence of diphenhydramine in other

children. Between Appellant’s first and second trials, the laboratory and Dr.

Ernest Lykissa, the laboratory’s director who had performed the initial hair

follicle tests, were discredited. Retesting was impossible because Dr. Lykissa

allowed the children’s hair to be destroyed. When questioned about the hairs’

destruction, he replied, “[M]y bad, as the young men say.” Consequently, the

hair follicle tests were not admitted during Appellant’s second trial.

Instead, the State sought to admit testimony from parents of the other

children regarding medical symptoms consistent with diphenhydramine

ingestion as extraneous offense evidence under Texas Rule of Evidence 404(b).

During a hearing outside the jury’s presence, Appellant’s trial counsel objected

to the parents’ testimonies on three grounds: relevance, TEX. R. EVID. 402; lack

of proof beyond a reasonable doubt, TEX. R. EVID. 104(b); and the probative

value being outweighed by unfair prejudice, TEX. R. EVID. 403. The trial court

overruled the objections and granted Appellant running objections. Appellant

did not request a limiting instruction and, later during the charge conference

of the guilt/innocence phase of trial, did not request a jury instruction that the

State must prove that Appellant committed an extraneous offense beyond a

reasonable doubt for the jury to consider it.
FRASER — 40

The court of appeals held that “the proper procedure for preserving a

complaint on admission of extraneous-offense evidence was not completed.”

Fraser IV, 2024 WL 4363741, at *9. The court of appeals reasoned that under

Texas Rule of Evidence 105, “[t]o preserve the complaint of admission of

extraneous-offense evidence, defense counsel was required to request a

limiting instruction at the time the evidence was admitted.” Id. (quoting Taylor

v. State, No. 06-22-00063-CR, 2022 Tex. App. LEXIS 8160, at *8–9 (Tex. App.—

Texarkana Nov. 4, 2022, no pet.) (mem. op., not designated for publication)).

The court of appeals held that trial counsel’s failure to do so forfeited appellate

review. Id.

Rule of Evidence 105 provides:

(a) Limiting Admitted Evidence. If the court admits evidence that
is admissible against a party or for a purpose—but not against
another party or for another purpose—the court, on request, must
restrict the evidence to its proper scope and instruct the jury
accordingly.

(b) Preserving a Claim of Error.

(1) Court Admits the Evidence Without Restriction. A party
may claim error in a ruling to admit evidence that is
admissible against a party or for a purpose—but not against
another party or for another purpose—only if the party
requests the court to restrict the evidence to its proper scope
and instruct the jury accordingly.

(2) Court Excludes the Evidence. A party may claim error in
a ruling to exclude evidence that is admissible against a
party or for a purpose—but not against another party or for
FRASER — 41

another purpose—only if the party limits its offer to the
party against whom or the purpose for which the evidence is
admissible.

TEX. R. EVID. 105.

The court of appeals’ reliance on Texas Rule of Evidence 105 was wrong.

Appellant’s objections challenged the admissibility of the evidence for any

purpose and the State’s failure to prove its admissibility. Under Rule 105, if

the evidence was admissible for a limited purpose, Appellant needed to have

requested a limiting instruction in order to preserve error for appellate review.

Id. R. 105(b)(1). But evidence that is irrelevant, is more prejudicial than

probative, or is not sufficient to support a finding beyond a reasonable doubt is

not admissible for any purpose. See id. R. 104(b), 402, 403. Thus, assuming

Appellant was correct that the evidence was not admissible for any purpose,

Appellant was not required to request a limiting instruction to preserve error

on appeal. See id. R. 105. Consequently, the court of appeals erred to conclude

that Appellant’s objections were not preserved for appellate review. On

remand, the court of appeals should address the merits of Appellant’s

objections on appeal, if necessary. 8

8 The court of appeals also noted that “defense counsel raised the issue of extraneous

offenses and stated ‘an instruction that goes to the jury that if there is any extraneous
offense or bad acts before they can consider it, they must believe it’s been proven
beyond a reasonable doubt. We are not requesting that[;] we believe that it is trial
strategy.’” Fraser IV, 2024 WL 4363741, at *9 (original emphasis). This may waive a
FRASER — 42

V. Conclusion

We affirm in part and reverse in part the judgment of the court of appeals

and remand the case to that court for proceedings consistent with this opinion.

Delivered: September 3, 2025
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claim about whether the State proved the extraneous offenses beyond a reasonable
doubt. Cf. Mitchell v. State, 931 S.W.2d 950, 954 (Tex. Crim. App. 1996) (“[I]f a
defendant, during the guilt/innocence phase, asks for an instruction to the jury on the
standard of proof required for admitting extraneous offenses, the defendant is
entitled to that instruction.” (citing George v. State, 890 S.W.2d 73, 76 (Tex. Crim.
App. 1994))).