dissenting.
The complainant, who was an independent contractor working as a salesman for appellant’s real estate brokerage, was paid a commission by the seller of a house. The commission check was made payable to appellant. The complainant had no confidence in appellant’s integrity and did not wish to surrender the cheek to appellant with only *386his promise of reimbursement. Accordingly, the complainant did not give the instrument to appellant until he had first secured a “reimbursement” check from appellant in a like amount. The two men deposited then-checks in their respective banks, but appellant immediately stopped payment on his reimbursement check.
The majority finds, as a matter of law, that no theft was perpetrated here because appellant, as the “holder” of the check, was the owner of the instrument and, thus, cannot be criminally liable for theft. While I agree that appellant was the “holder” of the check, this fact is irrelevant to the issue before us because appellant was never prosecuted for or convicted of stealing the check. The indictment alleged, and the jury found, appellant stole the complainant’s money, not his check.1
In other words, the gravamen of the offense perpetrated here is not that appellant deposited the check into his account. On the contrary, the check was made payable to the appellant; he was the “holder” of the instrument; and the complainant voluntarily gave the check to the appellant with the intention that he should deposit the check into his account. Rather, the offense was committed when appellant deposited the check into his account intending to deprive the complainant of the money by stopping payment on the reimbursement check
Money is not a tangible chattel. See Riverside Nat. Bank v. Lewis, 603 S.W.2d 169, 174 (Tex.1980). Although a check can be the means by which money is transferred, it is not, in itself, money. Here, the check is simply the instrumentality by which appellant received the money. See Grogen v. State, 745 S.W.2d 450, 451 (Tex.App.-Houston [1 Dist.] 1988); Jackson v. State, 646 S.W.2d 225, 226 (Tex.Crim.App.1983).
The evidence demonstrates the complainant had a greater right to possession of the money than did appellant. Thus, the complainant was the “owner” of the money regardless of whether he was the “holder” of the check. See Tex. Penal Code Ann. § 1.07(a)(35) (Vernon 1994). When appellant transferred the money into his account and simultaneously blocked its subsequent transfer to the complainant’s account, he unlawfully appropriated the complainant’s money. It was not necessary for him to take physical possession of currency. See Jones v. State, 672 S.W.2d 812, 817 (Tex.App.-San Antonio 1983), rev’d in part on other grounds, 672 S.W.2d 798 (Tex.Crim.App.1984).
If the majority were correct, the State could never prosecute a defendant who, by false pretenses, persuades another to give him a check. For example, in Swope v. State, 723 S.W.2d 216 (Tex.App.-Austin 1986), affirmed, 805 S.W.2d 442 (Tex.Crim.App.1991), the defendant persuaded the complainant to give her a number of cashiers checks totaling more than half a million dollars. Pretending to be the heiress of a large estate in Switzerland, the defendant said she needed the money to pay some back taxes and thereby close-out her late husband’s estate and obtain the assets. The defendant promised the complainant that she would return twofold the money lent to her. Each cashiers check was made payable to the defendant. Although the issue before us was not raised in Swope, the case exemplifies the type of scheme where a defendant steals money by deception via a check. In such cases, the defendant is the “holder” of the check, and he is the only person authorized to endorse, deposit, or cash the check. This fact, however, does not render him immune from prosecution for stealing the money transferred from the complainant’s account by means of the check.
Here, the State established the check was for funds owed to the complainant as his sales commission. Appellant obtained the check from the complainant under the false pretense that he would transfer the money to the complainant’s account via a reimbursement check. It is clear from the cireum-*387stances and appellant’s subsequent actions that he actually had no intention of transferring the money to the complainant’s account. This is a simple case of theft. Accordingly, I respectfully dissent.
. The indictment alleged in pertinent part that appellant, on or about August 26, 1993:
... did appropriate by acquiring and otherwise exercising control over property, namely, MONEY, owned by ERIC PETTORINO, hereaf-
ter styled the Complainant, of the value of OVER SEVEN HUNDRED FIFTY DOLLARS AND UNDER TWENTY THOUSAND DOLLARS, with the intent to deprive the Complainant of the property.