means in texas obviously in texas a no bill means that a grand jury failed to find probable cause now that proceedings of a grand jury are secret but  indictment the state presents the grand jury with information the grand jury can really do what it wants and it can return an indictment for the charge it could return of indictment on even only a misdemeanor it could it could do whatever it wants or can return is by finding is is subject to a higher standard than in the grand jury had to return a true bill is further removed from the situation has under not undoubtedly less information from the grand jury would have had the grand jury also has the prosecutors really their best shot at all the evidence they have they can meet with the grand jury this defense doesn't have any ability to even go in there they can present any and all evidence or did no duty to present exculpatory evidence the grand jury can issue subpoenas they can gather any and all kinds of information and it's reasonable to assume that the grand jury would have had a much broader much bigger picture of what the circumstances surrounding the off chance and nonetheless they fail to find probable cause to return an indictment in either of these cases and the district court subject to a higher standard which is why this which is why this case is different from the issue of whether the district work and consider acquitted conduct in that situation sentencing we're  evidentiary standard of proof is going down here it's going up and the grand jury not even be they not it may not even be unanimous on a decision on whether to return a true bill or no bill  but i believe it is the case that a grand jury can can't decide what charges which is to return if and it doesn't even have to be the felony present all this is and all this shrouded in secrecy so we don't really know but we hear the grand additional fact that this was no guilt by the body who has a lower standard of proof it's most much closer to the events has more information in front of it that is evidence that casts doubt on the reliability of the officer for  of how it's being described it should it should be a red flag for the court not to consider this information absent more i think of reasonable rule along these lines is that the court can't rely on information that's played of no bill by a grand jury unless there is information that post dates the nobel subsequent information information brought into court that can corroborate the information in the police report the information the police report its reliability is called into question by the grand jury issue and nobody even though we don't know what happened inside that room i think it's the abstract we make these statements but but then you look at a particular record i groaned well before a grand jury or if you did you have that information you may have a matter of fact that are developed there and which are which are not the i believe the fact that the grand jury had more information should underscore why this barebones recitation should not be considered reliable if we're going to think it's more than reasonable assume the grand jury had more information than the district court did fifteen years later but just as a paragraph i think it's certainly a result of they would have at least that information and likely more information that the prosecutors  cases where that does occur but i would point out this isn't this isn't exactly an officer shooting this is injury to a child we have to to arrest alleging that someone was injuring a child doesn't seem like the type of case where that may be but we don't know we don't know one way or the other but i think it's it's unfair to just assume that may very well be what happened that the ily by what charges requested and the grand jury can choose another charge they can choose a lesser charge but a no bill is or is allowed statement it's a statement that there is not probable cause you are and there are concerns as to this evidence what that those concerns are we really don't know but that information w considered alongside a police report should be a red flag for the court that he's got he's limited position to know the circumstances but that should be a red flag to the court that this information not sufficiently reliable to support a finding and that that at that initial threshold issue of whether the information is sufficiently reliable support is probable accuracy  kinds of considerations that perhaps should go into this it seems to me that this is a better case than gibson was for the use of the information in the p s or about the uncharged  of the nobels in that in gibson there was a fair amount of information to draw into question even whether that individual was the correct individual the inability of the victim to  and what the district judge says it goes to whether this would cost or to implicitly with a also that whether this would constitute a crime for which and died and was being sought i believe these events occurred regardless of they so i don't necessarily think this factual distinction is all that important i think that i think the case is aligned with with gibson in terms of the issue presented and that the fact that the judge is highlighting that i'm just relying on the conduct not the office and believe judge higginson described that as a distinction without a difference because the judge is basically finding these constituent facts which  i suggested in the briefing though i don't think it's really necessary to deciding the issue i did suggest that there may be some question as to whether there is some sort of disciplinary  defense justification defense but the bottom line is there's there's clearly more to it than what the police have outlined at st blush or we would have true bills you know in fact that there are several multiple often says where the defendants wife is calling the police in connection with standing of her children both of them involved busy a disciplinary issue and the grantors returning and no bill and i think that calls into question just what happened what facts occurred what the facts didn't occur we don't really know but it's not our duty to really on earth what did or did not happen it's the government's duty to corroborate what's presented in the police report with information whether in court testimony it's a statement that we were convened we have more information we've investigated this and we have not found the lower standard of probable cause and so it's up to the government to shore that up to try to provide some additional information that could help the district court find byproduct of the evidence that those acts occurred so gibson in response please the court and program for the united states the opponent's position in this case is contradicted by both this court's case law and the completely on refuted record in this case the court has already decided the issue before it today and gibson and this conduct and correct me if i had the facts from is that both incidents there was one witness that the child would be another witness but there was the principal witness was the wife or ex wife now perhaps i don't know th the time who to believe and what actually happened is hard to figure out so this is a in a way a more difficult case it seems to me than gibson that we don't have the  information but we do have the kind of suspicious situation that makes one wonder what really happened and who is telling the truth how do we factor that in there are a number of factors in that the factual recitation that support its reliability and one ends an objective factor with the presence of physical injuries particularly in the nd case that the police officer was able to observe st hand that corroborated the detailed timeline of events that was provided and in fact there were two witnesses a minimum of two witnesses in each of these cases the victims themselves and their mother at no time before sentencing at sentencing through this appeal has fields ever claimed that those facts were inaccurate in some way he fled the scene on both occasions would have had an opportunity to give his version of events and to this day has not disputed that the conduct that's correct we do have the record and every i don't have affirmative evidence that he was asked that in contrast to this court's decision and gibson gibson affirmatively objected before sentencing the consideration of that conduct and said i wasn't involved in that incident and then persisted in that objection through sentencing and it was still appropriate for the district court to exercise its discretion to look at the objective evidence on the record and to attribute more credibility to those facts the blanket objection by the defendant without any evidence to the contrary so here we have a detailed timeline of events in both cases you have the officers st hand observation of the injuries that was altered from those events and you don't have any denial of any point in time of those facts instead all you have is a grand jury no bill and as the court explained in gibson a no bill is a charging decision or rather a decision not to charge with that particular office and the court specifically held that it is not a judgment as to whether on lawful conduct occurred it's not an affirmative act of any kind it's a charging decision and as a result the district court's factual finding is easily reconciled with a decision to no bill because there are separate and distinct inquiries and the court's precedent makes clear that it's case law takes two tracks when it's looking at often says that resulted and finally cation criminal conviction you get your assignment of criminal history points and a lot of times you don't even have a description of that conduct but it's take it into account in the criminal history or other criminal conduct that for one reason or another did not result in the conviction the court's lens shifts and it looks only at that factual description and adjudicated arrests two or three of which resulted in charges not being pursued because the victims didn't want to pursue them but the court observed that you had details actual counts underscoring those arrests and just like this case you had no were bottle of that evidence by the defendant the burden was fulfilled by the government and not shifted by the defendant and as a result it was proper for the district or in its discretion is sentencing to take that into account as a sentencing factor united states versus fuentes is helpful it goes into the reliability presumptive reliability of a police report when it's on rebutted and then the remainder of the court's case lies is on published at this point but are on point with regards to the district court's discretion to look at the p s r when it's supported by presumptively reliable records and to decide that the defendant in gauged in that conduct of the ultimate legal disposition of that conduct feels is correct we have no idea what went into the no bill those proceedings are there no precludes of effect there was a new bill in this case that the prosecutor could have taken the same evidence different evidence and brought it before the same grand jury or a different grand jury those proceedings are confidential as he pointed out you could have had an affirmative defense that came into play in cases involving domestic violence you oftentimes have victims that are unwilling to testify against the accused and in this case the michelle black edges intially married the defendant so we don't know if she was unwilling or unable to testify against him during the grand jury proceedings and it can also pertain to a legal defect in the charge that is being pursued injury to a child has several components there's a mens rea component to the defendant there is a definite a bodily injury that has to be met any one of those legal technicalities could come into play when the grand jury is deciding which in texas can be as few as four of the twelve members of the grand jury can lead to a nobel and you can have a minority vote of the grand jury that will result in a noble and all of those factors pla into why this court has found that no bill isn't evidence of anything it's a charging decision that decision is in line with this court's precedent dating all the way back to supreme court precedent and watch where they explain in the context of an acquittal and an acquittal is not an affirmative fact that's not a judgment on the facts because we don't know what the jury considered we don't get jury findings of fact and united states forces american sols on this failed to engage in illegal conduct and then carry that through to gibson where it said a no bill is not a judgment that you did not engage in criminal conduct it's a challenging decision and in accordance with rachel versus state of texas  dissent and gibson but that's the rule of law the law working with here and i would i would emphasize that even if this court follows the dissent this case should still be a front the dissent was focused on what it called powerful statements on the face of the p s r pertaining to the photo line by the district court that it looked at that school tory evidence and thought that that was waiting enough for the district court to need to make additional fact findings but it is helpful to look at the most critical member of that panel what he believes the hallmarks of reliability are and each of those homes is met here we have a detailed timeline of events for both offices we have to st hand accounts from both instances we have physical injuries that corroborate that timeline of events we have  at that factual recitation and deciding that it's a detail with us there's no ambiguity on the face of the record and i'll give you an example in the record the core looked at one of the prior convictions in this case and it was  vehicle and the defendant fields had started out in one car fled from the police abandoned that car and was later found in a nd vehicle and the p s r said in the vehicle we found all of this drug paraphernalia and the district court said that's a to a child instances made those findings and then stopped and said we have not eight or nine other often arrests that were not adjudicated did not result in convictions but i don't find that i have enough detail or enough facts to find that he engaged in that conduct so i'm not going to we have a careful delineation in this case between sufficiently reliable facts and that's in the record of page one of seven and then we have the district court stopping to say i don't have enough for the rest of these so i'm not going to consider them and when you see the district court exercising its discretion in that way and making a careful determination that certain facts have enough support and others did not that's a clear indicator that the court had enough to base that finding on and the majority in gibson explained that a finding that the defendant engaged in that conduct is in no way inconsistent with a no bill because they're separate separate inquiries one is a legal proceeding on particular charges that could be based on a number of things and the other is just finding something pertaining to the defendant's background history and characterized as what she is exactly what eighteen the court has applied that in situations similar to the new bill starting with harris where you have the trial there's that were not pursued move into fuentes for the defendant pled to lesser charges that it was appropriate to consider the original facts t report which this court has held has a presumption of reliability then yes that is enough if it's detail then supported by a police report and there is no rebuttal there's no contrary evidence this isn't a case where the record says  charges were dropped after it was determined the defendant was out of state when it happened or it's unclear who pushed who so we don't know you know the charges were dropped because it's unclear who was responsible for the assault in question there's nothing on the face of this record to cause the district court to question and the most important thing here is the defendant didn't even try there's no objection there's no offer of testimony there's no at no point in time to the fields dispute that those facts were accurate the only argument ever made is that resulted in a no bill so you shouldn't consider it and this court has already held that that's not enough or you have a sufficiently reliable record that this record is entitled to adopt that  look at the office reports and the burden fairly shifts to the defendant at that point to say i didn't do that i didn't engage in that conduct that wasn't me he didn't do that here and as a result the district court's determination was entirely plausible restaurant we know the court can't rely on that when imposing an up or variance from departure it's still in the police presence report it's not necessary to object i mean what is the defense really accomplishing by objecting to those the court can consider those that can't rely on those and going above the guidelines the only request we could really make is that it be deleted from the precision work which is not going to happen i've never seen that ever happen even though the i've looked at this criminal history and that gives them you know basin's criminal history i think a sense about the god this may be appropriate and then we go back go through the criminal history you see there's too often says that or that or no bill and  then counsel myself objected that the court shouldn't be considering that information because it's not sufficiently reliable and it's easy i mean this happens all the time it's easy for the government to say oh the don't need to bring any information and the court can find against him and then that's a five point swing dance no acceptance that's obstruction so the defense is i mean defend it's almost impossible situation to be coming up with affirmative evidence to discredit these out of court statements that are find their way into a police report and the question of the notice counsel that this is going to happen but my suggestion to you is why isn't that enough to understand the p s r because you are the fact is that the person who's report recounts that he was arrested from his office it's just like a barrel restaurant recounts that there's a police report that says this is nuts and it also recounts that this was no bill so there are those facts can all be true such that the defense need not object to it even if the defense would want to court to rely on that to hold that against him so i mean it is true that the police report says x y and z and there's a no bill when those facts are true so i don't know submission we noticed that your court appointed and we appreciate your willingness to take your point man for your good work on behalf of your client