
    Ex parte Curtis James SMITH.
    No. 54805.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Feb. 22, 1978.
    Duncan F. Wilson, Austin, for appellant.
    Ronald D. Earle, Dist. Atty. and Charles E. Hardy, Asst. Dist. Atty., Austin, for the State.
    Before ONION, P. J., and DOUGLAS and ODOM, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a habeas corpus proceeding brought to secure a reduction of bail pending appeal.

Article 44.34, V.A.C.C.P., provides that the record on a habeas corpus appeal, “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.” The record before us contains a transcript of instruments on file in the trial court and the transcribed court reporter’s notes from the hearing. Although the transcript is certified by the clerk, the transcribed reporter’s notes are certified by neither the clerk nor the judge, as required by Art. 44.34, supra.

This case is distinguishable from both Ex parte Sims (No. 55139, 2/15/78) and Ex parte Henderson (No. 57115, 2/15/78), in which no transcription of the court reporter’s notes was in the record on appeal. Inasmuch as the transcribed reporter’s notes were presented to the trial court for the appellate record, the duty placed on counsel by the majority in Sims and Henderson was here carried out. But inasmuch as they are not properly certified, and inasmuch as Art. 44.34, supra, places the duty on the clerk or judge to so certify that record, we hold the appeal should be abated for proper certification of the record.

Furthermore, the instruments in the record reflect that in the primary offense out of which this bail proceeding was initiated, counsel was appointed for appellant upon his pauper’s oath. For this additional reason the appeal should be abated to afford him a proper record. See Ex parte Sawyer, Tex.Cr.App., 543 S.W.2d 143.

The appeal is abated.  