Kevin Franke’s trial in the hot car deaths of two children has been continued while the courts await a decision by the Texas Court of Criminal Appeals that could impact the case.
On Aug. 15, District Court Judge N. Keith Williams ordered, in agreement with defense attorney Richard Ellison and District Attorney Lucy Wilke, that Franke’s trial would be postponed. They're waiting until the Texas Court of Criminal Appeals rules on whether negligent or reckless conduct leading to death can be the basis for a murder charge.
“It wouldn’t make sense to go to trial on the two felony murder cases on indictments that allege the deaths were caused by criminally negligent conduct that was committed knowingly ... until we know what the law will be after the (court of appeals) rules,” Ellison said in an email.
Franke, who was 16 years old at the time of the girls’ deaths two years ago, has maintained that he didn’t know the toddlers were present when he was given permission by their mother to sleep alone in a front seat for a couple of hours after a party in Kerrville.
The girls’ mother, Amanda Hawkins, reportedly told people who asked about the welfare of her children that the toddlers were fine. Franke received a ride to the party from a friend, but the friend left him there.
“He’s just a kid who took a nap in a car and was not the guardian, he was in the wrong place at the wrong time,” Ellison said.
Addyson Overgard-Eddy, 2, and Brynn Hawkins, 1, were left in the car until about noon. They were taken to a local hospital and then to a San Antonio hospital, where they were pronounced dead.
In addition to arguing his client didn’t know the kids were there, committed no wrongdoing knowingly and should never have been certified to go into the adult court system, Ellison is arguing that the two murder indictments against Franke are legally invalid.
Although it’s not disputed that Franke turned off the car, rolled up the windows and left, Ellison argues that there is legal precedent for the notion that “felony murder cannot be based on negligent or reckless conduct.”
Depending on how the appellate court rules, this legal precedent may become official case law in the near future.
“This should never have been indicted as a felony murder case,” Ellison said Tuesday. “And I think the court of criminal appeals will make the right decision.”
But even if Ellison succeeds in getting the two murder indictments quashed, Franke has several other felony charges stemming from the same incident: two counts of manslaughter, two counts of causing serious bodily injury to a child and two counts of abandoning or endangering a child.
Amanda Hawkins was not convicted of murder; she was sentenced to 40 years in prison last year after being convicted on two counts of child endangerment and two counts of injury to a child.
“I think Amanda Hawkins got a great plea (deal) and maybe somebody thought that somebody ought to get indicted for murder, since Amanda got away with it,” Ellison said.
For now, Franke is out of jail on bond. He has an 11 a.m. to 6 p.m. curfew, must submit to random urinalysis testing and other typical bond conditions. However, until Ellison had the bond conditions modified last week, Franke was required to wear an ankle monitor and be in the company of his father 24/7, Ellison said.
Franke is working for his father digging ditches and installing water lines for mobile home parks, and he received his GED from Kerrville Independent School District’s alternative high school at age 17.
He’s considering joining the military if he ends up having a clean record, Ellison indicated.
“Kevin’s a good kid,” Ellison said. “It was a horrible accident. He was in the wrong place at the wrong time, and he’s getting treated like a murderer and he’s a good kid.”
Franke’s pastor and friend, Robert White, agrees.
“He doesn’t have a mother,” White said. “She abandoned him when he was a year and a half old. We knew his grandparents, when he came here. He doesn’t know anything about kids. He’s never been around kids in his life. No siblings. I’ve questioned him about this so many times.”