                                                                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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