Derri Raye Lukasik v. State

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-17-00799-CR
Derri Raye LUKASIK,
Appellant
v.
The STATE of Texas,
Appellee
From the 290th Judicial District Court, Bexar County, Texas
Trial Court No. 2016CR9695
Honorable Melisa Skinner, Judge Presiding
Opinion by: Sandee Bryan Marion, Chief Justice
Sitting: Sandee Bryan Marion, Chief Justice
Marialyn Barnard, Justice
Patricia O. Alvarez, Justice
Delivered and Filed: October 3, 2018
REVERSED AND RENDERED
Derri Raye Lukasik was convicted by a jury of theft and sentenced by the trial court to two
years’ imprisonment; however, her sentence was suspended, and she was placed on three years’
community supervision. On appeal, Lukasik contends the evidence is insufficient to support her
conviction and trial counsel rendered ineffective assistance of counsel. Because we hold the
evidence is legally insufficient to support Lukasik’s conviction, we reverse the trial court’s
judgment and render a judgment of acquittal. Because the resolution of Lukasik’s second issue is
not necessary to the final disposition of the appeal, we do not address it. See TEX. R. APP. P. 47.1.
04-17-00799-CR
BACKGROUND
Lukasik was charged with intentionally depriving the Texas Department of Human
Services of electronic benefits and Medicaid by unlawfully appropriating those benefits without
the Department’s effective consent. At trial, the State introduced evidence that two applications
were submitted to the Department for Medicaid and Supplemental Nutrition Assistance Program
benefits (commonly referred to as food stamps), and Lukasik verbally confirmed the information
in the applications was correct when she was contacted by a Department caseworker. One
application dated October 2013 listed the household income as zero, and the other application
dated January 2014 listed the household income as $15,000. An investigator for the Department,
Jason Escobar, reviewed bank records and testified the household income was a much greater
amount, and the family did not qualify for the $21,640.08 in benefits they received. After hearing
the evidence, a jury found Lukasik guilty of theft.
SUFFICIENCY
In her first issue, Lukasik contends the evidence is insufficient to support her conviction.1
Lukasik contends Escobar’s calculations of her family’s income “were based on speculation and a
lack of knowledge about any business deductions.” Because the Lukasiks owned their own
business, Lukasik asserts Escobar’s testimony was “inconsistent and unintelligent” because he was
unable to explain “how to calculate business income with allowable deductions for the day to day
operation of a business.” The State responds Escobar testified “[o]nly gross income is considered,
not any deductions,” and Escobar’s review of the bank records “confirmed that if [Lukasik] had
accurately reported her income, she would not have qualified for any benefits.”
1
Although Lukasik’s brief refers to both legal and factual sufficiency, the Texas Court of Criminal Appeals has held
the “legal-sufficiency standard is the only standard that a reviewing court should apply in determining whether the
evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a
reasonable doubt.” Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010)
-2-
04-17-00799-CR
“When examining the legal sufficiency of the evidence, we consider the combined and
cumulative force of all admitted evidence in the light most favorable to the conviction to determine
whether, based on the evidence and reasonable inferences therefrom, a rational trier of fact could
have found each element of the offense beyond a reasonable doubt.” Ramsey v. State, 473 S.W.3d
805, 808 (Tex. Crim. App. 2015) (citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). A
jury is permitted “to draw multiple reasonable inferences as long as each inference is supported by
the evidence presented at trial.” Hooper v. State, 214 S.W.3d 9, 15 (Tex. Crim. App. 2007). “[A]n
inference is a conclusion reached by considering other facts and deducing a logical consequence
from them.” Id. at 16. Juries are not, however, permitted to reach a conclusion based on mere
speculation; [s]peculation is mere theorizing or guessing about the possible meaning of facts and
evidence presented.” Id. at 15-16. As a reviewing court, we must give deference to “the
responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and
to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319.
Only two witnesses testified at trial. The custodian of the bank records for the Lukasiks’
personal and business accounts identified the bank records which were admitted as an exhibit and
testified those records were previously turned over to the Department. Escobar testified Lukasik
was listed as head of household on the applications that were submitted to the Department
requesting benefits, is the person who was interviewed by the Department during the application
process and confirmed the information on the applications was correct, and is the person who
received the benefits. After receiving the bank records, Escobar examined the deposits into the
accounts and based on those deposits determined the Lukasiks received $217,935.55 in income for
2013. Escobar testified eligibility for benefits typically is based on gross income. Based on his
investigation, Escobar prepared a Computation of Erroneous Benefits showing the Lukasiks
received $21,640.08 in benefits for which they did not qualify.
-3-
04-17-00799-CR
On cross-examination, Escobar testified he would have looked at any additional
information requested by the caseworker who initially reviewed the applications and remembered
seeing a tax document and bank statements during his evaluation of Lukasik’s file. Escobar
identified a form used by the Department entitled “Client’s Statement of Self-Employment
Income,” which requires the person to list income and expenses. The form explains, “Expenses
are your costs of doing business,” and provides numerous examples. During his investigation,
Escobar recalled seeing a copy of the form which Lukasik had completed. Escobar acknowledged
the Department’s caseworkers consider the form in determining eligibility for benefits and also
agreed the form takes into consideration deductions for business expenses in determining self-
employment income. Escobar admitted he did not have any expertise in determining business
income and was not familiar with deductions allowed by the IRS in computing a business’s profit;
however, he stated he did make certain deductions, including deductions for fuel expenses.
Escobar admitted he was guessing about what expenses were deductible from the bank records. In
response to whether “it’s completely possible that everything on those bank statements was
deductible and should not have been counted as income,” Escobar responded, “It’s possible.”
When asked if “it’s the same situation” with the income, Escobar responded, “No. Because we
count the gross income. We don’t — we don’t take any deductions or any other expenses out of
the income, it’s just whatever they make.” Escobar identified a portion of the Department’s
handbook used by the caseworkers in determining eligibility which was admitted as evidence.
Section A-1323.4.5 of the Department’s handbook entitled “Allowable Costs of Producing
Income” provides, “Allowable self-employment expenses are based on costs that can be deducted
from federal income taxes according to the IRS Schedule C, Form 1040 – Profit or Loss from
Business. There are certain self-employment expense types that are not allowed for SNAP.”
Escobar agreed section A-1323.4.5 had about a page of expenses that were deductible and admitted
-4-
04-17-00799-CR
he did not make deductions based on the categories allowed by section A-1323.4.5. The portion
of the Department’s handbook admitted into evidence also contains section A-1323.4.7 entitled
“Determining Net Self-Employment Income” which provides annual and monthly computation
methods for determining net self-employment income by subtracting allowable expenses from
gross self-employment income.
On re-direct examination, Escobar testified the appraised value of the Lukasiks’ home was
approximately $300,000 and the deposits into the Lukasiks’ bank accounts ranged from $65,000 a
month to $100,000 in April of 2013. However, Escobar previously testified no deposits were made
in some months, and the question on the applications asked about income in the past three months.
Escobar stated he requested tax documents from the Lukasiks during his investigation, but they
did not provide them.
On re-cross examination, Escobar testified he briefly reviewed a tax document that was in
the file and used it as a reference to determine the expenses to deduct. Escobar admitted he did
not consult with the caseworkers who initially determined the Lukasiks were eligible for benefits.
Escobar also identified the following which were introduced into evidence: (1) a Client’s
Statement of Self-Employment Income completed by Lukasik on October 28, 2013, listing
$10,000 in income and $15,000 in expenses; and (2) a Client’s Statement of Self-Employment
Income completed by Lukasik on February 7, 2014, listing $15,000 in income and $15,556.30 in
expenses. Escobar testified he did not look at those documents during his investigation; however,
on re-direct examination, Escobar testified the documents were not signed by anyone with the
Department, and he did not know if the documents were ever turned over to the Department.
The jury could have given no weight to the Client’s Statement of Self-Employment Income
completed by Lukasik based on Escobar’s testimony that the Department may not have received
the documents. As previously noted, however, juries are not permitted to reach a decision based
-5-
04-17-00799-CR
on mere speculation by “theorizing or guessing about the possible meaning of facts and evidence
presented.” Hooper, 214 S.W.3d at 16. In this case, the jury could not ignore the evidence that
the Department’s handbook set forth numerous deductions that must be made in computing self-
employment income for eligibility purposes and provided a method for determining net self-
employment income. Although Escobar testified the Lukasiks’ income in 2013 was $217,935.55,
he testified he computed that amount based on deposits into the Lukasiks’ bank accounts and used
the Lukasiks’ gross income in evaluating their eligibility. Although he later testified he made some
deductions, he admitted he was not familiar with the deductions allowed in computing a business’s
profit and that he guessed about what expenses were deductible from the bank records. Similarly,
although Escobar testified the deposits into the Lukasiks’ bank accounts ranged from $65,000 a
month to $100,000 in April of 2013, he also admitted no deposits were made in some months, and
the question on the applications asked about income in the past three months. In addition, in those
months in which deposits were made, Escobar did not calculate the deductions that should have
been allowed pursuant to the Department’s handbook. Finally, no evidence was presented
regarding the amount of income that would make the Lukasiks ineligible for benefits. Because no
evidence was presented establishing the Lukasiks’ self-employment income as computed in
accordance with the Department’s handbook, the jury could not speculate or guess what that
amount would be using the proper computations. Accordingly, the evidence is legally insufficient
to support the jury’s finding that Lukasik unlawfully appropriated benefits from the Department.
CONCLUSION
Because the evidence is legally insufficient to support Lukasik’s theft conviction, we
reverse the trial court’s judgment and render a judgment of acquittal.
Sandee Bryan Marion, Chief Justice
DO NOT PUBLISH
-6-