question of qualified immunity because as this court recently held an opinion offered by judge higginbotham brewer versus hanging which was cited in a letter brief after the briefing in this case in light of the fact that it was decided after the briefing was completed in this case the propriety of qualified immunity on both elements is so clear here respectful even more so than it was in the brewer case that i'd like to focus on that in the time that i have first as the record demonstrates the appellee was arrested based upon a probable cause warrant that was issued by an independent magi strate which was based upon the affidavit testimony of a houston police department detective who testified that he would have sought the same arrest warrant in the absence of any information from the medical examiner office based upon significant evidence suggesting probable cause for mister dean's arrest apart from the medical forensic testimony of sort of medical forensic evidence to do but even if the court were to wonder about what the judge who issued the arrest warrant would have done the court's need look no further than the grand jury indictment and the undisputed record evidence that dr phatak was not called to testify and that there is no evidence any information from his medical forensic report including his medical opinion of homicide were presented to the grand jury what i don't recall i do recall i thought your brief was pretty carefully worded on that point to say the doctor found it never appeared but surely the results of the medical examination were before the grand jury in some way or another we have no evidence of that your honor from the prosecuting attorney or from any other record now keep in mind is the court may have observed that between the time of the district attorney's decision not to prosecute mr dean and the time that mr dean brought a lawsuit he moved the state district court to expunge the records relating to his prosecution and while this court doesn't apply any type of very spotty ation rule to an affirmative effort to destroy the evidence that would speak specifically to his claims some courts have found that appropriate and it is a curious sort of situation indeed when the plaintiff now appellee chooses to destroy the records and then proceed with a prosecution having disarmed the defendants including dr phatak in this every record in connection with a criminal prosecution yes your honor that's my understanding and that's certainly true yes rather it is not available it is destroyed i'm not aware of anyone who retains that record other than the record of the record what was presented to the grand jury there is no need the medical examiner records would be destroyed district attorney's office records would be destroyed defense attorneys records would be destroyed no judge that's an excellent point right is that the the criminal defendant in this case the plaintiff appellee is not obligated to destroy his own records but when asked to present them he did not have them in this case now i don't know to what extent he wouldn't he would have i'm not a crime of the fence large so i don't know to what extent he would have the record of the grand jury proceedings and i don't know whether there would be even be an indication if you had those records of what was presented to the grand jury but to judge jones is a question this record before the district court and therefore here on appeal is devoid of any evidence whatsoever that dr fabrics opinions were presented as part of the presentation to the grand jury and quadro in order to prove the first element of the qualified immunity analysis that is that there was a constitutional violation it is the appellate plaintiff's burden to present evidence that dr phatic did something to corrupt the grand jury's indictment and that he wholly has failed to do there is simply nothing before the court on that and  wouldn't i mean i don't know how grand juries work i don't think i and necessarily infer anything nefarious from this because after all you've been tried once and a hung jury been a second time and let off so you do any person even if they weren't going to sue anybody would want the records expunged but i don't know whether a grand jury i wouldn't just assume they would normally have even the doctors and if they wanted to call dr they could call dr fighting but it seemed to be incriminating well it certainly is a piece of a significant puzzle to use is the sole remaining potential defendant in this case it has now become the scene quite nanda of his indictment but the problem with that is it's merely argument and this court has repeatedly made clear that it is the plaintiff burden to disprove immunity which is otherwise presumed and so that being the case the plaintiff must do more than simply ask the court to imagine that this potentially damning evidence was presented to the grand jury but more importantly the even if the court were to demeanor on that issue the court can still find and and indeed i would respectfully submit must find under the in which judge jones also participated that qualified immunity clearly applies here and it's found simply in the pelleas own briefing the pelly addresses two points in his briefing the first is limitations i won't complains that dr phatic did not do what the appellee alleges but does not prove was a necessary medical forensic test and that is this side by side comparison and in fact that's exactly what the introduction to the a pelleas entire argument on the question of a constitutional violation is the problem with that is again there is absolutely nothing not one thing in the this side by side comparison is one which a forensic pathologist may consider may utilize but no standard direct him or her that it is required to do the work that d phatak was doing and in that regard we find that not only did dr fabrics supervisors approved dr phatic expression of his medical opinion not only did the chief medical examiner for harris county then also approve both dr fed ex opinion and the means by which he utilized to reach it but the a pelleas own expert dr joyce carter the former harris county medical examiner did not raise did not question dr fed ex methods or medical opinions when she testified in the criminal trial nor in this record now that that the court will find it record p just seventy seven eighteen and nineteen indeed dr carter could have acknowledged that she could have and chose not to do a side by side honor to that point when this side by side contention came up in the district court in this case dr faddish trial counsel asked for the opportunity to propound written admissions all aimed at an identification of the basis for the allegation that a side by side comparison was as the pelly now claims require that that written discovery demonstrated demonstrates that dr i'm sorry the judge bennett said he would allow the deposition on that point if the appellee intended to present dr carter to urge that point under seven o two appellee then contacted dr and said that he did not intend to use dr carter to present that testimony the record is clear no doctor has espoused the assertion or stood by the plaintiff's pure allegation that this side by side comparison was required so the point is dr we do have dr carter's money from the first trial right you do and what you have in there at record pages are at record pages forty to fifty and fifty one that dr carter chose not to do a side by side comparison herself and as i said at record pages seventy seven eighteen and nineteen dr carter did not raise a question about either dr fed ex methods or her medical opinions when she testified at the criminal trial what she testified about at the criminal trial she what she testified to about her own opinion about whether this could be properly classified as a homicide or suicide on what i mean not the not just the not just the autopsy but all the rest of the evidence together right as the court may recall mr mr dean was found to have gunshot residue on his hands but the decision did not have any gunshot residue there was an effort to explain why that is she didn't have no real signet no significant blood on the hand that supposedly was holding the gun that fired the weapon so that dr carter was called generally to speak to the forensic evidence she was asked which would you be willing to concede that the question of whether or not the doctor created a false report is immaterial because you seem to be saying even if that report was found it's just doesn't matter because it was never used i wouldn't say that it wasn't used for the indictment as far as we know in the records and i couldn't concede that it's a matter of immaterial idea if the if there was a knowing false hood i don't i don't i wouldn't want to be heard to say that but what i would say your honor is that that with the district court grand jury and the record before this court does not indicate it was presented to the hearing jury but but once you're out once the court may if the court gets past the quad or issue or chooses not to address it as it relates to the question of qualified immunity whether there was a constitutional violation and whether it violate whether the conduct i'm sorry or not true yes but the trial court correctly recognise that he's entitled absolute immunity for his trial testimony there is no evidence in the record that this is a false report there is evidence in the record which which appropriately the harris county medical examiner including dr phatic acknowledged was an error in medical but he's also been tired entitled to an honest mistake your honor and that's what this court confronted him brewer that's what the question he is and that's what the dish of course is the reason is a genuine issue of material fact the question is whether or not he created a fox reporter just made some honest mistake and i respect that and i respect the district judge who made that statement but the problem is the statement is made in isolation of the evidence there has to be the trial court did not point this court or the parties to any evidence that underpins that assertion it is correct to say that that's the question but today before this court the question is in answering that question where is the evidence and i feel very comfortable telling the court there is none of time  utilize termit to the suicide position of the stand down that were so obvious then why didn't your defense expert dr joyce carter for all i know a very well respected former medical examiner in houston why didn't she say that in the first trial and relieve your client of the necessity of a second trial i was not involved in that trial i don't care who was involved in any of it so obvious and required by medical practitioner and the only thing that makes this thing fall false then dr carter it seems to me would have would have recognizes well and i did she make a false mistake to know i don't know that she and wasn't one way or the other well that's the point isn't it because well we're trying to what you're trying to do is transform medical negligence in to deliberate falsehood and if he's an m d you can be even on a dead person you can be liable for malpractise  not be liable for an intentional toward but so how do you get there the way we get here detective waters at the end of his interrogation of my client whether that handles up or down determined so dr fay tech in his deposition said handled up or down determines the entire case for all the other things that the but and i'm sorry i'm going into the transcript of the first trial but if that was the critical level didn't seem to me it would be hammered home by the prosecutor would be in the closing argument it would be in the opening argument but going back to your question of how do we get there from here first of all the the fact is that once dr wolfe did his comparison it was obvious that the gun was in the suicide position dr wolfe testified to that dr fay tech testified to that he was one hundred eighty degrees wrong and i understand what the court saying now comes down to did he do it on purpose or grossly negligent like or was it just an honest mistake because dr fay tech himself said the detectives said dr wolfe said handle up or handle down decide whether this is a homicide versus a period now you say well that's just one honest mistake well the second one that he did is not an honest mistake dr fay tack to help detective waters who desperately wanted my guy prosecuted because a lot of time if you put all the damning evidence what you claim to be the damning evidence and you agree but anyway and so as we go forward from there what is in the record and is in our briefing  guy who absolutely knows better than to use vitreous fluid is for some reason in this particular case using it because it does have a false high reading and i didn't read your brief your brief has a and about an hour and a half earlier to be precise because that's when mr dean went out of the house to take his friend home so that she seems to have been passed out an early hour and a half i mean i'm not denying him read the trial with contradictions now i don't disagree with counsel those in and of themselves are not a basis that's absolute immunity applies and that but the trial court was certainly free to consider that information in addition to the vitreous law that in addition to the gun but you know what really influenced me in looking at the briefs and judge bennett's opinion here was judge bennett did not seem to be reciting evidence he seemed to simply be reciting the allegations in your complaint and we did do a little bit of work to try to tie those allegations to the evidence and we were not having much effect so i mean rightly or wrongly it appeared to me that judge bennett was relying mainly on your allegations because he didn't recites all this evidence nor did your brief that you were in  matter of law that there have to be facts to support the concept that it's not the same as the motion to dismiss understand that but then the main things he relies on as i recall he relies on the fact that detective watts was in the room detective watts there's an implication that detective watts said we're going to get this guy or something like that that influenced dr fay tack in his examination and conclusions that dr fay tax evidence was the critical evidence that went before the grand jury and then before the the jury in the first trial and that dr fay tax evidence for all the for those reasons was concocted and falls i mean there's not much more meat in judge bennett's analysis but we're not here to critique judge bennett i mean obviously if you have these facts you have these facts but  let me ask you the other biggest question and you know i'll take your word for it will look very closely to record my other big big question is how can judge bennett reconcile this criticism of dr fay tack when he lets detective watts off the hook well i wish i wish she could not let the take the waters of the but on his sleeve it's a different legal standard it's a different legal standard for the police officer than i they're arguing now about a grand jury was broken and so we shouldn't be able to get to detective audience because dr fay tacked i suppose me that then blue line if you will between him and righteousness but you're but you're saying that this all started with the detective watters saying whack women don't commit suicide which is a very statement i had never heard before this morning and so he had it in his mind the dean was guilty right put everything together notwithstanding counter testimony by the neighbor whatever you know explanation of things and so forth so fake tech would have had no motive to get dean unless waters and said he's the guy gunned down and it was gunned down the gun up so it's not a suicide and that's that's how they that was their argument about to take the waters and the judge agreed with that  that based on it's based on the fact that the so obvious that the gun was supplied in the suicide position by arsonists the other position it's based on he does the vitreous load instead of blood alcohol it's based the unlike what counsel said the gunshot residue test was inconclusive all both shannon and mr dean and the reason if you're asking me why it's because it's a contact wound all the stippling goes into the brain and there's no blood coming out it's coming out the other side a nose no ma'am in fact what if the dangle of the entry was what you would expect if someone's laying on the floor doing a suicide which is comes in here at the temple and exits higher on the back side well it actually went through the bathroom wall in that very evening then then you know he goes off for an hour and takes is friend home there's a question about where the gun was the friend said the gun was in the laundry room next to the garage  in the top drawer of the dresser right accessible to his wife who was suicidal i might add in certain circumstances then he goes and looks at the text messages between her and her boyfriend he gets angry they've already been quarreling they know that they are quarreling about it she freaks out and then the argument is did he try to get into the bathroom to save or did he go in the bathroom to kill or and one of the examining officers on the scene says it couldn't possibly been the way he describes it because there was a heavy pursing on the door i mean it circumstantially very suspicious and i'm not you know but the  this side by side comparison forces in an hour he comes back and says this is a suicide and this is a gun and that prosecutors dropped case now with we're going to expungement that they still had the record in fact as part of and side by side there's a standard i'm going to have an expert witness of a testify that if the sole basis for your decision is whether that handle is up or down then yes you need to get the wound not just go i've seen a gun like that before and i've seen this wound and i'm going to tell you that this was handled up that's not how you do it if that's the sole basis for your determination the sole basis because again there was  is is such a it's so dishonest that he intentionally fabricated this evidence why did he go why did he say that in the deposition because by then  medical judgment of homicide versus suicide turned solely and only upon the position of the gun and i don't think that in following judge jones his invitation that counsel can present that i should point  out that equally dr wolfe never testified that it was obvious to him that the gun position was wrong but rather than that it became clear to him after doing the side by side comparis i don't know what detective waters supposedly said to the appellee a but i do it if it's true then detective water started with a bias of his own investigation which is is the break in the chain of causation and under quadro not only should this court find no constitutional violation because of that break up the grand jury in the absence of a record of evidence showing the grand jury considered it but even if it's there the precedent of this court holds that the court then must determine whether in the absence of that would there still be probable cause to support the grand jury's indictment and judge jones recitation of the facts it's deed is borne out by the record and because time doesn't allow it i would point out that those records citations are clear within pages sixteen through nineteen of the appellant brief and as to the gunshot gunshot residue but simply that she was successful in seeking in changing an order excluding that from evidence in the first criminal trial there is nothing inconclusive about the findings of gunshot residue on mr dean's hands i'm mr dean clothing on his hands he admitted to the detectives that he washed his hands after the incident and before the police arrived but there was gunshot residue found on a t shirt which he had changed out of after the shooting and record thirty seven sixty two and record forty one seventy eight is mr dean's admission that he changed his t shirt before the police arrived but to put to the broader two points of qualified immunity the limited time i have left let me just offer two observations in brewer judge higginbotham wrote about the quote unquote science of odone ticks which the court acknowledged was in serious question at the time that  that dental expert utilized and the court said however because it was still of vailable and recognized as a potential use for criminal investigation it was appropriate for the doctor to use it here in contrast the court has no evidence from any source that a side by side comparison was required in fact the a me she including the american medical association tells this court there is no brewer as of june said medical errors in medical judgment do not violate the trust issue i'm talking about whether or not it was required when i thought we were talking about whether or not he created a false report it may have created a mistakenly inaccurate report but there's absolutely no evidence that shows graves that it created a knowingly false report and after all that's the test there's no evidence in this record mr gallo's very eloquent exactly i mean a deviation from any from a recognized and accepted standard of care would at least allow what a pelleas counsel is suggesting which is some inference of them attempt to do something other than what the medical standards required but in complying with medical standards and looking at this court's case in it chris court's opinion in brewer and looking at what the district courts have said based upon brewer in the absence of a medical standard medical negligence simply does not reach the level of a constitutional violation and if it does this court should enunciate that fact now but it still must allow my client the presumption of the immunity to which he's entitled thank you and thank you for the additional time