concurring.
I concur in the finding that the evidence is insufficient to support the allegations in the indictment. However, in order to understand this conclusion, it is necessary to set out the evidence produced at trial with regard to the manner of deception employed to secure performance of the services.
Charles Miller testified that he was an Assistant Front Desk Manager for the Holiday Inn Motel at the Dallas-Fort Worth Regional Airport. Miller stated that on November 18, 1977, appellant entered the motel and registered to rent a room. After filling out a registration card, Miller informed appellant that motel policy required that upon check-in, a guest must either pay one night’s room rent in advance or leave an imprint of an accepted credit card. Appellant informed Miller that he expected the arrival of a friend later that evening and that the friend would leave his credit card at the desk. Miller then gave appellant a room key and a membership card to a club at the motel. No credit card was ever delivered to the front desk as appellant had promised.
Three days later, appellant had yet to pay the motel for any of the services which had been rendered. Miller related that he saw appellant in the motel lobby and spoke with him concerning the nonpayment in the following manner:
“A. It looked like he was going from his room to the restaurant, and like I said, I was behind the desk and I asked him to come over there, I needed to talk to him for a minute. He came by and I says, ‘Sir, your bill is getting rather high. We will have to have a credit card or a check or cash payment on it sometime in the near future.’ He says, ‘That is fine.’ He said that he would get with me or someone at the desk later on that day and settle up.
“Q. He said he would pay that day?
“A. Yes, sir.”
Ralph E. Herz testified that he was the manager of the Holiday Inn motel in question. Herz stated that appellant registered on Friday afternoon and that by Saturday, his motel bill was in excess of $190.00. Hera approached appellant Saturday morning concerning the need to have some payment or security on his motel account. Appellant told Herz “I will take care of it.” By Saturday evening appellant had not yet paid for any of the services and Herz locked appellant out of his room. Appellant was let back into his room upon his assurance that the bill for services rendered at the motel would be paid.
By Sunday morning, appellant’s bill at the motel was in excess of $290.00. Herz approached appellant again concerning payment and appellant said that he would go to *327a bank on Monday morning and cash a check to pay his motel bill. Herz had not received any type of payment by Monday night and once again had appellant locked out of his room. Upon discovering that he had been locked out of his room, appellant tendered a check in the amount of $423.48 to the motel. This check was drawn on the Sabine State Bank and Trust Company in Zwolle, Louisiana. The following morning, Herz called the police after speaking with officials at the Sabine Bank concerning appellant’s check.
Don Zick testified that he was Vice President of the Sabine Bank. Zick stated that the check which appellant presented to the Holiday Inn was a counter check. Zick related that such checks are made available in the bank lobby to regular checking account customers who are not using their personalized cheeks. Zick stated that appellant did not have any type of account with the bank.
The instant prosecution was for theft of service pursuant to V.T.C.A. Penal Code, Sec. 31.04(a)(1). The elements of that offense are as follows:
1. A person;
2. With intent to avoid payment for service known to be provided only for compensation;
3. Intentionally or knowingly;
4. Secures performance thereof by;
5. Deception.
The indictment in the instant case alleged that appellant secured performance of the service by deception. Such deception was alleged to have been by means of a check drawn on a bank in which appellant did not have an account.
The evidence at trial revealed that appellant secured performance of the service from Holiday Inn by means of his repeated assurances that he would “take care of the bill.” This deception commenced upon registration when he assured Miller that a friend would leave a credit card imprint at the front desk of the motel. The deception continued for three days as appellant assured Herz that he would take care of the bill in one way or another. Upon these repeated assurances, the motel continued to provide services in the form of food, lodging, and liquor to appellant. By the time appellant tendered the worthless check, the motel had provided services to him in excess of $400.00.
V.T.C.A. Penal Code, See. 31.01(2) defines “deception” in the following manner:
“(A) creating or confirming by words or conduct a false impression of law or fact that is likely to affect the judgment of another in the transaction, and that the actor does not believe to be true;
“(B) failing to correct a false impression of law or fact that is likely to affect the judgment of another in the transaction, that the actor previously created or confirmed by words or conduct, and that the actor does not now believe to be true;
“(C) preventing another from acquiring information likely to affect his judgment in the transaction;
“(D) selling or otherwise transferring or encumbering property without disclosing a lien, security interest, adverse claim, or other legal impediment to the enjoyment of the property, whether the lien, security interest, claim, or impediment is or is not valid, or is or is not a matter of official record; or
“(E) promising performance that is likely to affect the judgment of another in the transaction and that the actor does not intend to perform or knows will not be performed, except that failure to perform the promise in issue without other evidence of intent or knowledge is not sufficient proof that the actor did not intend to perform or knew the promise would not be performed.”
As we noted in Cortez v. State, 582 S.W.2d 119, such “deception” must be such as is likely to affect the judgment of another in the transaction. The indictment in the instant case did not allege that appel*328lant secured performance of the services by deception in making repeated promises to pay or “take care of” the motel bill that he did not intend to perform or knew would not be performed. Rather, the form of deception alleged related to appellant’s act of passing a worthless check after the services had been rendered by the motel.
This is not to say that the issuance of a worthless cheek could not be the deception employed to secure the performance of a service. If a merchant required prepayment or a deposit for services to be performed and such services were rendered after the defendant created a false impression of fact as to the validity of a check given for such prepayment or deposit, then issuance and passing of the check would constitute “deception” which would have affected the judgment of the merchant in the transaction. In Littlefield v. State, 586 S.W.2d 534 (Tex.Cr.App.), such a factual situation was present although it did not form the basis of revocation of the defendant’s probation. In that case, the defendant tendered a check in the amount of $50.00 to serve as a deposit on an automobile he desired to lease. When the automobile was delivered, the defendant tendered a second check in the amount of $417.20 for the balance of the money due at the beginning of the lease period. Both checks were dishonored and the defendant retained possession of the automobile.
The evidence in this case does not support the allegation that the services were secured by deception in issuing a worthless check. I concur in the reversal of the judgment.