¶1dissenting.
¶2I dissent.
¶3On January 21, 1976, the juvenile court ordered appellant temporarily hospitalized at the Austin State Hospital. On February 16, 1976, appellant was released from the *400Austin State Hospital. On that date Dr. George B. Tipton, Director of the Adolescent Center at the Hospital, wrote the juvenile court in part as follows:
“In my opinion, Jimmy [appellant] is able to distinguish right froto wrong and to adhere to the right. In my opinion, he is not suffering from a serious mental illness that leads to any lack of responsibility for his behavior. He is capable of cooperating with his attorney and assisting in his own defense.”
¶4Dr. Tipton’s letter appears in the transcript and was before the court. Tex. Family Code Ann. § 54.02(a)(1) (1975).
¶5After appellant’s release from the Austin State Hospital and before the hearing on the matter of waiver and transfer, appellant’s counsel filed a second motion for psychiatric examination of appellant. The juvenile court overruled the motion.
¶6The court erred in overruling appellant’s motion for a psychiatric examination. Tex. Family Code Ann. § 55.04 (1975). Meza v. State, 543 S.W.2d 189 (Tex.Civ.App.1976, no writ).
¶7Appellant, however, did not discharge his burden of demonstrating that the error of the court amounted to such a denial of his rights as was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Tex.R.Civ.P. 434, Meza v. State, supra,see D. L. C. v. State, 533 S.W.2d 157 (Tex.Civ.App.1976, no writ). Appellant did not tender evidence on bill of exception showing that after temporary hospitalization and at trial time appellant lacked capacity to understand the proceedings in juvenile court or that he lacked capacity to assist in his own defense.
¶8I would affirm the judgment of the juvenile court waiving its exclusive original jurisdiction and transferring appellant to district court for criminal trial.