OPINION
This is an appeal from an order entered in a habeas corpus proceeding.
Appellant is charged by indictment with aggravated robbery in Cause Number 252482 in the 176th District Court of Harris County. After the hearing bail was reduced from $70,000 to $40,000, and notice of appeal was given. The record is before us without a transcription of the court reporter's notes.
The preparation of the record in a habeas corpus appeal is governed by Art. 44.34, V.A.C.C.P., which provides:
"When the defendant appeals from the judgment rendered on the hearing of an application under habeas corpus, a record of the proceedings in the cause shall be made out and certified to, together with all the testimony offered, and shall be sent up to the Court of Criminal Appeals for review. This record shall be sent up to the Court of Criminal Appeals within fifteen days after the date of the judgment, except that if good cause is shown, the time may be extended by the Court of Criminal Appeals.1 This record, when the proceedings take place before the court in session, shall be prepared and certified by the clerk thereof; but when had before a judge in vacation, the record may be prepared by any person, under direction of the judge, and certified by such judge." (Emphasis added.)
The statute is mandatory, and requires that the testimony offered at the hearing be included in the record on appeal.2 The record before us reflects that the hearing was held and judgment was entered on May 11, 1977. The record was certified by the clerk on May 25, but it does not include the testimony offered at the hearing. Neither does the record show any request to this Court for an extension of time as authorized by the statute set out above. As a result, we are unable to determine the appeal. See Art. 44.36, V.A.C.C.P.
Accordingly, the appeal must be abated in order for the clerk of the trial court to prepare a complete record as required by Art. 44.34, supra.
Many earlier habeas corpus appeals were affirmed when no transcription of the court reporter's notes (or statement of facts) was in the record. Those cases, however, cited no statutory authority for placing the burden on the petitioner to submit such material for inclusion in the record, and Article 44.34, supra (or the like provision in earlier codes of criminal procedure), was not mentioned. Accordingly, those cases are not controlling authority on the proper interpretation of Article 44.34, and we expressly overrule those cases, which include: Ex parte Kindell, Tex.Cr.App., 415 S.W.2d 922;
*Page 47 Ex parte Moore, Tex.Cr.App., 318 S.W.2d 667; Ex parte Lewis, Tex.Cr.App., 263 S.W.2d 557; Ex parte Anderson, Tex.Cr.App.,243 S.W.2d 169; Ex parte Matthews, Tex.Cr.App., 225 S.W.2d 843; Ex parte Stone, 152 Tex.Crim. R., 214 S.W.2d 127; Ex parte Canavan, 147 Tex.Crim. R., 182 S.W.2d 818; Ex parte Palmer, 136 Tex.Crim. R., 124 S.W.2d 860; Ex parte Newsom, 136 Tex.Crim. R., 124 S.W.2d 860; Ex parte Horn, Tex.Cr.App.,97 S.W.2d 698; Ex parte Adams, Tex.Cr.App., 13 S.W.2d 842; Ex parte Williams, 84 Tex.Crim. R., 206 S.W. 195; Ex parte Teague, Tex.Cr.App., 145 S.W. 620; Ex parte Northern,63 Tex.Crim. 275, 140 S.W. 95; Ex parte Naill, Tex.Cr.App.,127 S.W. 1031.
Turning from the above overruled cases, which neither state reasoning nor cite authority for affirming rather than abating a habeas corpus appeal in the absence of a statement of facts, we find an earlier case in which a related defect was held dispositive. In Ex parte Malone, 35 Tex.Crim. R.,31 S.W. 665, 33 S.W. 360, the habeas corpus judgment was affirmed on appeal without consideration of the purported statement of facts in that record because the court found it was not prepared in compliance with the rules then in force. Although Judge Henderson dissented on rehearing, 33 S.W. at 361, regarding the proper preparation of the statement of facts, he agreed that the failure to comply with that procedure required affirmance, and he concurred in the disposition of the case. The authorities cited on original submission for disposition in the absence of a proper statement of facts were Hess v. State, 30 Tex. App. 477[30 Tex.Crim. 477], 17 S.W. 1099, and Morris v. State, Tex.Cr.App., 29 S.W. 780, both of which were direct appeals from a judgment of conviction. In Hess the court stated that diligence in preparing the statement of facts was not shown to have been exercised by the defendant or his counsel. But if, as in habeas corpus appeals under Art. 44.34, supra, and Art. 881, Texas Code of Criminal Procedure (1879), then in force, the duty to prepare the record for appeal, "together with all the testimony offered," is not on the defendant, but on the clerk or judge, then no want of diligence may be attributed to the defendant, and he may not be denied a full review on appeal for some third party's failure to act. Thus, the rule governing direct appeals does not apply, and the decisions in Hess and Morris, applying to direct appeals, do not apply in a habeas corpus appeal.
In Ex parte Isaacs, 35 Tex.Crim. R., 31 S.W. 641, the Court also affirmed a habeas corpus appeal when presented with a purported statement of facts that was not properly prepared. There, as in Malone, supra, decisions in cases on direct appeal were cited. Furthermore, in one of those direct appeals, Butler v. State, 33 Tex.Crim. R., 26 S.W. 201, the Court considered the statement of facts in spite of the error in its preparation and reversed the conviction, announcing, "Hereafter such violations of the rules (for preparing the statement of facts) will simply be met by this court's refusing to consider the statement of facts for any purpose."
It thus appears from Butler, supra, that the bar to consideration of an improperly prepared statement of facts in a direct appeal was not considered jurisdictional, but was announced as a prospective rule, created by the Court in its discretion, to govern consideration of future appeals brought before it.
Our examination of these earlier habeas corpus appeals; i.e., Malone and Isaacs, supra, convinces us that they, taken with their authorities, do not support affirmance of the instant appeal in the absence of a transcription of the court reporter's notes. We believe the Court in Ex parte Kramer, 19 Tex. App. 123[19 Tex.Crim. 123], correctly noted the distinction between habeas corpus appeals and others upon which we base today's decision:
*Page 48"(W)e are of the opinion that the rules governing the forwarding of transcripts to this court, on appeals in other criminal actions, do not govern appeals in habeas corpus cases. Appeals in habeas corpus cases are separately and specially provided for and regulated, and no particular mode is prescribed for bringing the transcripts in such cases before this court.
(Code Crim.Proc., art. 881.) (Now, Art. 44.34, supra.)"
Finally, if any doubts remain about the soundness of the distinction we draw between habeas corpus appeals and appeals brought under Art. 40.09, V.A.C.C.P., from a judgment of conviction, it should be noted that Art. 44.34, supra, was amended in 1973 by the addition of the second sentence, to-wit:
"This record shall be sent up to the Court of Criminal Appeals within fifteen days after the date of the judgment, except that if good cause is shown, the time may be extended by the Court of Criminal Appeals."
This provision alone demonstrates the incompatibility of the habeas corpus appeal with the procedures set out in Art. 40.09, supra.
For the reasons set out at the beginning of this opinion, the appeal is abated and the clerk of the trial court is directed to prepare a complete record as required by Art. 44.34, supra, and to send it to this Court within fifteen days (unless an extension of time is applied for and granted under the terms of the statute and the rules of this Court) in order that we may decide the case.
It is so ordered.