CONCURRING OPINION ON STATE’S MOTION FOR REHEARING
ROBERTS, Judge.I concur in the holding that the evidence was insufficient to support the conviction, simply because the State did not prove what the indictment alleged. The indictment charged that the appellant:
“with intent to avoid payment for services, namely: food, lodging and beverage, *332services of the Holiday Inn — DFW Airport South, that he knew were provided by the said Holiday Inn only for compensation, did knowingly and intentionally secure performance of said services of the value of more than $200 but less than $10,000 by deception, to-wit: did then and there present in payment for said services to Karen Miles, the owner thereof, a check for which the said defendant had no account at the bank on which the check was drawn.”
The emphasized language committed the State to prove three things (among others):
(1) the deception of presenting a worthless check secured performance of the services;
(2) the secured services were worth more than $200; and
(8) the worthless check was presented in payment for the same services (“said services”).
The proof was that the appellant checked into the motel, secured performance of $423.48 worth of services, gave a worthless check in full payment for those services, and then was permitted to secure $142.58 worth of additional services. Did this prove what was alleged? It did not.
The deception of presenting the worthless check secured performance of services, but only the services that were performed after the check was given. Cortez v. State, 582 S.W.2d 119 (Tex.Cr.App.1979); Norman v. State, 170 Tex.Cr.R. 25, 338 S.W.2d 714 (1960). This means that the services secured by presentation of the worthless check were not worth more than $200 (they were worth $142.58), so the proof of allegation (2) failed. It also means that the worthless check was not presented in payment for the services it secured (it was presented in payment for services previously secured), so the proof of allegation (3) failed.
Insofar as the Court’s opinion holds this, I join it. The speculation about “what affected Herz’s judgment Monday night” I
cannot join. I can only say, after viewing the evidence in the light most favorable to the State, that a rational trier of fact could have believed beyond a reasonable doubt * that the giving of the worthless check secured the subsequent performance of the $142.58 in services, but not the $423.48 that was performed before the check was given. So the felony conviction cannot stand.
See generally Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Griffin v. State, 614 S.W.2d 155, 159 (Tex.Cr.App.1981).