• Tex. Crim. App.
  • Cochran, J.,
The court decides whether the failure to prove that appellant secured the performance of the contract with a "worthless check" was merely an immaterial variance under Gollihar or whether the state failed to prove the essential element that an act of deception secured performance of a contractor's services. When the indictment alleges theft of services by "deception" through the issuance of a bad check, proof that the check was issued after the performance of the services will not support a conviction for theft of services. The court affirms the court of appeals judgment rendering an acquittal. Court of Criminal Appeals, No. PD-1717-11, 01-09-2013.