State of Texas v. Tello, et al

United States Court of Appeals
Fifth Circuit
F I L E D
June 30, 2005
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 04-11424
Summary Calendar
_______________
STATE OF TEXAS,
Plaintiff-Appellee,
VERSUS
JOHN THOMAS TELLO,
Defendant-
Third Party Plaintiff-
Appellant,
VERSUS
HAROLD EAVENSON,
SHERIFF, ROCKWALL COUNTY, TEXAS, AND CUSTODIAN OF JOHN THOMAS TELLO,
Third Party Defendant-
Appellee.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
m 3:04-CV-1718-N
______________________________

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Before DAVIS, SMITH, and STEWART,
Circuit Judges.
PER CURIAM:*
John Tello pleaded guilty in Texas state
court to two counts of indecency with a child
by exposure and one count of possession of
child pornography. Adjudication of guilt was
deferred, and Tello was sentenced to concur-
rent five-year terms of deferred-adjudication
probation.
When the state moved to revoke probation
and for adjudication of guilt, Tello removed
the case to federal court and sought habeas
corpus relief. The federal district court re-
manded and denied the habeas application.
Tello filed a notice of appeal and motions to
supplement the record on appeal and to stay
the state proceedings.
Although the district court referred to the
abstention doctrine of Younger v. Harris, 401
U.S. 37 (1971), it correctly noted the lack of
federal subject-matter jurisdiction. Moreover,
it is plain that “federal jurisdiction never ex-
isted.” Bogle v. Phillips Petroleum Co., 24
F.3d 758, 762 (5th Cir. 1994). The state
action against Tello was a continuation of his
state criminal action. See McClendon v. State,
784 S.W.2d 711, 713 (Tex App.SSHouston
[14th Dist.] 1990, pet. ref’d) (holding that
deferred adjudication of guilt is “part and
parcel” of the original criminal plea proceed-
ing); TEX. CODE CRIM. P. art. 42.12 § 5(b).
Except in rare cases involving federal defen-
dants or the likelihood of equal-protection
problems not applicable here, there is no
jurisdictional basis for the removal of a state
criminal proceeding.
Because the district court lacked jurisdic-
tion and did not “clearly and affirmatively” rely
on a basis for removal other than a lack of
jurisdiction, this court lacks jurisdiction to
review the remand order. See Heaton v.
Monogram Credit Card Bank, 231 F.3d 994,
997 (5th Cir. 2000); Bogle, 24 F.3d at 761; 28
U.S.C. § 1447(c), (d). The remand order will
stand. The appeal is DISMISSED.
Absent jurisdiction, the district court’s
ruling on Tello’s habeas corpus application is
void. See Bogle, 24 F.3d at 762. All of
Tello’s motions are DENIED.
* Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.

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