* Pursuant to 5TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

April 17, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-10914

Conference Calendar

STATE OF TEXAS,

Plaintiff-Appellee,

versus

JOHN THOMAS TELLO,

Defendant-Third Party Plaintiff-Appellant,

versus

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Third Party Defendant-Appellee.

--------------------

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:05-CV-1049

--------------------

Before HIGGINBOTHAM, BENAVIDES, and PRADO, Circuit Judges.

PER CURIAM:*

John Thomas Tello pleaded guilty in Texas 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 concurrent five-year terms

of deferred-adjudication probation. When the State moved to
No. 05-10914

-2-

revoke probation and for adjudication of guilt, Tello

unsuccessfully attempted to remove the case to the federal

district court and to seek habeas corpus relief. See Texas v.

Tello, 142 F. App’x 200, 201 (5th Cir. 2005). 

The State has now moved to revoke Tello’s appeal bond. 

Tello has again attempted to remove the bond revocation

proceeding to federal court and to obtain habeas relief. The

district court remanded sua sponte. We dismiss the appeal for

lack of jurisdiction pursuant to 28 U.S.C. § 1447(d).

The district court correctly noted the lack of federal

subject matter jurisdiction. Because it is abundantly clear that

federal removal jurisdiction never existed, this court lacks

jurisdiction to entertain Tello’s appeal. See Bogle v. Phillips

Petroleum Co., 24 F.3d 758, 761-62 (5th Cir. 1994).

Removal jurisdiction was precluded because no federal court

would have had original jurisdiction over the state bond

revocation proceeding. See PCI Transp., Inc. v. Fort Worth

& Western R. Co., 418 F.3d 535, 543 (5th Cir. 2005). In

addition, Tello’s bond proceeding is not a civil action for

removal purposes but remains incidental to and inseparable from

his state criminal case. See 28 U.S.C. §§ 1331, 1441(b); Jeter

v. State, 26 S.W. 49, 49-50 (Tex. 1894). Further, Tello’s

putative federal questions are raised in defense and, thus, would

not provide a basis for removal jurisdiction in any event. See

PCI Transp., 418 F.3d at 543. Finally, Tello’s putative federal
No. 05-10914

-3-

questions are not federal at all but rest entirely on his

proposition that the state court misapplied Texas law. 

The appeal is dismissed for lack of jurisdiction, and all

outstanding motions by Tello are denied.

Tello has twice resorted to frivolous removal proceedings in

an effort to forestall his state criminal proceedings, and his

federal pleadings are intemperate, disrespectful, and profane. 

Tello is hereby warned that any further filing of frivolous,

profane, or otherwise intemperate documents in federal court will

result in the imposition of sanctions, including monetary

sanctions and limitations on Tello’s access to federal court.

APPEAL DISMISSED; ALL MOTIONS DENIED; SANCTION WARNING

ISSUED.