OPINION ON STATE’S MOTION FOR REHEARING
CLINTON, Judge.On original submission a divided panel of this Court held that the evidence was insufficient to support the allegation that the appellant secured services from the Holiday Inn-DFW Airport South by deception in issuing a worthless check. Relying upon Cortez v. State, 582 S.W.2d 119 (Tex.Cr.App.1979), a majority of the panel concluded that the act of issuing the check could not have been the deception that secured performance of services already rendered. On rehearing the State correctly points out that the appellant, after he issued the check in question, incurred additional charges for services rendered by the Holiday Inn in the amount of $142.58. The State contends that by issuing a check to the Holiday Inn appellant confirmed the false impression that he intended to pay for his entire bill for services rendered by the Inn. That false impression, the State asserts, affected the judgment of the Holiday Inn personnel in the transaction with appellant that followed his issuance of the check. We granted the State leave to file a motion for rehearing in order to consider the notion thus advanced by our State Prosecuting Attorney. To put it in context, some recapitulation is appropriate.
The original theory of this prosecution is stated by the grand jury in its indictment: With the intent to avoid payment for services rendered by the Holiday Inn-DFW Airport South for compensation, appellant did “secure performance of said services,” valued between $200 and $10,000, by deception in that he “did then and there present in payment for said services ... a check for which . .. [he] . .. had no account at the bank on which the check was drawn.”1 This purports to allege an offense denounced by V.T.C.A. Penal Code, § 31.-04(a)(1),2 aided by the legislative presumption for theft by check in id. § 31.06,3 and carefully read, without regard for evidence actually adduced,4 it does.
However, the proof, most now seem to agree, shows appellant presented the worthless check not to “secure” performance of services, but well after they had been rendered — over the course of some seventy two hours from a Friday afternoon to the following Monday evening. If Cortez v. State, 582 S.W.2d 119 (Tex.Cr.App.1979) is disposi-tive, then the evidence is insufficient to support the verdict of guilt and the judgment of conviction.5
*330In his motion for rehearing our State Prosecuting Attorney undertakes to distinguish Cortez v. State, supra, by injecting a new theory in the case. Thus, he views and characterizes what happened from the time appellant checked in on Friday until he was arrested Tuesday — he never checked out— as a “continuous transaction” that had not been completed when appellant issued the worthless check. He argues that presentation of the check Monday evening caused “the people at the Holiday Inn” to provide appellant with more services after the check was issued, and the total amount of compensation for services rendered far exceeded the sum of the check. Suffice to say that from their argument to the jury below and in their appellate brief on original submission the prosecuting attorneys never so much as hinted such was a viable theory, and with the good reasons we are about to state.6
Monday afternoon appellant returned to the motel to find that, as on Saturday evening,7 he had again been locked out of his room for nonpayment of accrued charges.
He went to the desk and, as Mary Clare-mont described it, “he was extremely hostile and antagonistic and very upset about it and demanding that he get in his room or he would call his lawyer and create problems for us... ” From there appellant went unannounced through an outer office and intruded into a meeting Herz was having with a senior partner of the Holiday Inn firm; “overbearing and angry,” appellant denounced the inn as “a very terrible place” and upon being introduced to him proceeded to tell the senior partner “how badly he was mistreated.” When asked whether he had taken care of his bill, appellant turned and while walking out stated that he was going to take care of it by giving a check and checking out of the inn.8
Karen Miles, another desk clerk, testified that “[sjometime later on that evening” appellant returned to the desk and handed her a blank check which she partially completed in her own hand by writing in the date and amount due and some identifying data, after which appellant signed it. Releasing the check to Miles, and in the presence of *331Claremont, appellant stated that if they “tried to check with the bank to see if he had funds or . .. did any checking with the bank, he would stop payment on the check.” Claremont, presumably with check in hand, went to Herz and as a consequence of a conversation with him — which, on objection, was withheld from the jury — she returned to the desk and asked Miles “to call the check” through a Telecredit service to validate it. Miles did “attempt to verify the check;” though a sustained objection blocked her from stating the result, the jury almost had to infer that it was inconclusive, for first thing the very next morning Herz telephoned the bank on which it was drawn and based on what he learned in that conversation immediately called the affected police department and the F.B.I.9 To be recalled is appellant was arrested that day at the inn.
So, the new theory fails in two respects. First, the jury was not authorized to find appellant guilty unless the services secured by presenting the check to Miles were of the value of more than $200. Yet, the argument now is that the jury could have reasonably found that which it simply was not permitted to find. Secondly, the various efforts on Monday evening to determine the worth of the check in question and the early Tuesday morning investigation continued by Herz refute the notion espoused now on rehearing. Patently, Herz did not at all regard the matter settled Monday night but merely chose to avoid further confrontation until validity of the
check could be ascertained through a direct channel. What affected his judgment Monday night was not receipt of a questionable check but the bluster of appellant in making a general nuisance of himself. Unable to verify the worth of the check that time of night, what is a discreet innkeeper to do with a difficult guest but wait until regular banking hours the following morning?10 From the foregoing analysis we must conclude that, even if authorized by the charge of the trial court to do so, the evidence is insufficient for a jury to conclude that receipt of the check placated them to the extent of inducing Herz and his staff to continue to perform services for appellant, secure in the thought that past services had been paid and future performance would be too.11
Therefore, the judgment rendered by the panel on original submission should not be disturbed. Accordingly, the State’s motion for rehearing is denied.
Before the court en banc.
. All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.
. That provision reads:
“(a) A person commits theft of service if, with intent to avoid payment for service that he knows is provided for compensation:
(1) he intentionally or knowingly secures performance of the service by deception, threat, or false token...”
. In pertinent part, if one “secured performance of service by issuing or passing a check” without sufficient funds on deposit for its full payment, “his intent ... to avoid payment of service under Section 31.04... is presumed” if “he had no account with the bank ... at the time he issued the check... ”
. Axiomatic is the proposition that an indictment must be tested for validity by itself as a pleading, and can neither be supported nor defeated as a pleading by evidence; e. g., Bras-field v. State, 600 S.W.2d 288, 294-295 (Tex.Cr. App.1980); see also Posey v. State, 545 S.W.2d 162, 163 (Tex.Cr.App.1977): “The pleading must state facts which if true show a violation of the law.”
. The writer finds that the concurring opinion of Judge Tom Davis on original submission correctly outlines and analyses the facts of the matter, and though I agree the “deception” that secured performance of the services from the inn commenced when appellant presented himself to the registration desk clerk, Charles Miller, I believe it actually started when appellant created the impression of being, in the words of *330motel manager Herz, “a big businessman” by pretending there should have been a room reservation for him, requesting a corporate rate in the name of a company not listed in the corporate rate directory and justifying his leaving blank whether the account he was about to obligate himself to pay for would be handled by cash, check or credit card with the misrepresentation that a friend who was coming in later would provide a credit card to pay the account. Admittedly taken in by all this, Miller “went ahead and gave him the key ... and his club card membership and told him to have a nice stay.” Thus, it may be fairly said that the monetary wound later suffered by the injured party here was, in some measure, selfinflicted.
.Now, contrary to every other position taken in this case, the concurrence would separate the scenario into acts one and two, the curtain rising on the second with presentation of the check by appellant Monday evening. Thus, the opinion theorizes somewhat like the State Prosecuting Attorney, presenting the check confirmed an impression likely to affect the judgment of Holiday Inn personnel. The problem is there is no direct testimony to support this new notion. Indeed, a reasonable finding by the jury, consonant with the argument pressed on its members by the prosecuting attorneys, is that the “second act” had little or no bearing on the issue they were called on to resolve.
. On Saturday morning when Herz first approached appellant about payment of his outstanding charges amounting to over a hundred dollars, as they walked on into his guest room Herz mentioned that the inn must have some payment or some security on the account. Appellant produced a purported financial statement and asked, “Do you know who I am?” The statement, introduced as an exhibit, lists assets totalling almost eight and one half million dollars — and no liabilities. Turning to change his clothes, appellant assured Herz that as soon as he was finished, he would come make some arrangements, would take care of the bill. Not only did he not do so, he promptly left the inn. Discovering this, Herz double locked the door so that appellant must necessarily have to present himself to someone in charge in order to reenter.
. Though it is quite true that appellant did not check out Monday evening — in fact he never did — there is not one line of testimony that Herz ever spoke to appellant again. Miller, independently of Herz, also spoke once Monday afternoon to appellant about paying his bill “sometime in the near future,” but had no knowledge of subsequent conversations between Herz and appellant, and was not asked about the check.
. After the first attempt at verification, Clare-mont approached appellant in the bar and asked to look once more at his driver’s license. He refused, saying he was not going to give it to her “and get arrested again” — a remark that was never explained and that appellant denied making. Rebuffed, she returned one more time to talk to Herz about appellant, presumably reporting what had occurred in the bar. She never saw appellant again until trial. The record does not show that the check in question was ever deposited and it is undisputed that it was never presented for payment. (That it was drawn on a bank in Louisiana no doubt prompted Herz to alert the F.B.I.)
. Indeed, just as reasonable as the hypothesis now advanced is the thought that the check was retained without further ado so that if it turned out the next morning to be worthless Herz would then have a solid basis for summoning law enforcement authorities to take appellant away from the inn. That, of course, is precisely what happened.
.The concurring opinion charges that the Court is acting in the role of factfinder and evidence weigher, but what we are addressing is a motion for rehearing that presents a new theory for upholding the conviction. Our purpose has been to assay that contention in order to determine whether the panel on original submission correctly decided the issue. For the reasons developed ante, we conclude it did.