GILLESPIE COUNTY — In a pre-trial hearing held in the courtroom at the Gillespie County Jail Wednesday, Kevin Franke’s attorney, Richard Ellison, asked the judge to dismiss the two murder indictments stemming from the 2017 case when Amanda Hawkins left her children in the car overnight, ultimately leading to their deaths.
Franke is accused of rolling up the windows and turning the vehicle off the next morning while the children were still in the vehicle (act), and then failing to take them to get emergency help after they were found later in the day (omission).
Franke’s trial was originally scheduled for July 22nd in Kerr County but was moved back to September 30th when a change of venue was granted for the prosecution, who argued that the state couldn’t get a fair trial in Kerr County, based on comments by readers on Kerrville Breaking News.
That date now, could be pushed back again, or the felony murder trial could be canceled altogether if Judge Williams grants the defense’s motions. Franke would still face six other indictments, alleging manslaughter and injury to a child.
Kerrville attorney Richard Ellison filed a motion to quash based on two appellate cases with similar characteristics, in which murder convictions were overturned based on a defendant who had been convicted of murder based on an underlying felony indictment that resulted in either reckless or criminally negligent injury to a child.
The first case Ellison referred to was Fraser v. State, 523 S.W.3d 320, where the defendant was convicted for giving Benadryl to a child who she was the caregiver of at her daycare when it was naptime. The child was found unresponsive and not breathing.
“Despite the best efforts of the first-responder emergency medical personnel and hospital staff, Clara was later pronounced dead,” says the case text. “Subsequent toxicology test revealed a toxic level of diphenhydramine in Clara’s blood.”
This conviction was overturned by the Amarillo Court of Appeals in 2017. The State appealed to the Court of Criminal Appeals who heard arguments in March 2018. A ruling is expected to be given sometime soon.
Ellison argued that the indictments brought against his client, Kevin Franke, in 2017, stated that the underlying felonies were done by intentionally, knowing, recklessly or with criminal negligence. The Amarillo court in Fraser held that a reckless or negligent act cannot be the basis for felony murder. In the typical felony murder case, a defendant commits an intentional crime, like bank robbery, and another act, like running a red light in the getaway car and killing someone. Or if during the bank robbery a guard shoots at the robber and kills a bystander, the robber could be convicted for the death.
The other part of the argument is that a felony murder charge can only be used if there is an act in the underlying felony, which in this case, is Franke allegedly rolling up the windows and turning off the vehicle. The indictment also includes an omission being that Franke allegedly did not voluntarily deliver the child to an emergency medical care provider under Section 262.302 of the Texas Family Code.
Ellison argued there is a fear that the jury could see the omission part of the indictment and convict Franke based on the omission when the omission cannot be used to indict on a felony murder charge.
Assistant D.A. John Hoover said that the omission part had to be used to get the original indictments of Abandon Endanger Child Imminent Danger Bodily Injury and Injury of a Child with the intent of Severe Bodily Injury.
“We want to get this done but I don’t want to go to trial with a defective indictment,” stated Ellison.
Judge Williams is expected to study the appellate cases and might reset the trial date based on how long it might take to get a ruling in the Fraser case.
Ellison argued that if the trial is continued, his bond condition should be modified to allow him to remove the ankle monitor he has to wear 24/7.
The judge noted that Franke and his father have strict bond conditions and have appeared at every court date, so the court would consider the request.
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