Filed: Jun. 30, 2005
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D In the June 30, 2005 United States Court of Appeals Charles R. Fulbruge III for the Fifth Circuit Clerk _ 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
Summary: United States Court of Appeals Fifth Circuit F I L E D In the June 30, 2005 United States Court of Appeals Charles R. Fulbruge III for the Fifth Circuit Clerk _ 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 T..
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United States Court of Appeals
Fifth Circuit
F I L E D
In the June 30, 2005
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
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
______________________________
Before DAVIS, SMITH, and STEWART, problems not applicable here, there is no
Circuit Judges. jurisdictional basis for the removal of a state
criminal proceeding.
PER CURIAM:*
Because the district court lacked jurisdic-
John Tello pleaded guilty in Texas state tion and did not “clearly and affirmatively” rely
court to two counts of indecency with a child on a basis for removal other than a lack of
by exposure and one count of possession of jurisdiction, this court lacks jurisdiction to
child pornography. Adjudication of guilt was review the remand order. See Heaton v.
deferred, and Tello was sentenced to concur- Monogram Credit Card Bank, 231 F.3d 994,
rent five-year terms of deferred-adjudication 997 (5th Cir. 2000);
Bogle, 24 F.3d at 761; 28
probation. U.S.C. § 1447(c), (d). The remand order will
stand. The appeal is DISMISSED.
When the state moved to revoke probation
and for adjudication of guilt, Tello removed Absent jurisdiction, the district court’s
the case to federal court and sought habeas ruling on Tello’s habeas corpus application is
corpus relief. The federal district court re- void. See Bogle, 24 F.3d at 762. All of
manded and denied the habeas application. Tello’s motions are DENIED.
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
*
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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