# Fourth Court of Appeals **San Antonio, Texas** MEMORANDUM OPINION N o. 04

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- 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 insuff icient 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 T EX . R. A PP . P. 47.1.04

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- B ACKGROUND 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 Nutriti on 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. S UFFICIENCY 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 unin telligent” 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)04

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- “ When examining the legal sufficiency of the evidence, we consider the combined and cumulative force of all admit ted 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, t o weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson , 443 U.S. at 3 19. Only two witnesses testified at trial. The custodian of the bank records for the Lukasiks ’ personal and business accounts identified t he bank records which were admitted as an exhibit and testified those record s 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 ben efits , 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 de posits into the accounts and based on those deposits determined the Lukasiks received $217,9 3 5 .55 in income for 2013
. Escobar testified eligibility for benefits typically is based on gross income. Based on his investigation, Escobar prepared a Computatio n of Erroneous Benefits showing the Lukasiks received $21,640.08 in benefits for which they did not qualify.04

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- 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 pe rson to list inco me and expenses. T he form explains, “Expenses are your costs of doing business,” and pro vides numerous examples. During his investigation, Escobar recalled seeing a copy of th e form which Lukasik had co mpleted . Escobar acknowledged the Department’s case workers 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 adm itted 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 situa tion” 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 u sed 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” provide s , “Allowable self

- employment expenses are based on costs that can be d educted 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 tha t were deductible and admitted04

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- he did not mak e deductions based on the categories allowed by section A

- 1323.4.5. The po r tion of the Department’s handbook admitted into evidence also contains section A

- 1323.4.7 entitled “Determining Net Self

- Employment Inc ome” 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’ hom e 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 fi le 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 d id 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 do cuments. As previously noted, however, juries are not permitted to reach a decision based04

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- 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 com puting self

employment income for eligibility purposes and provided a method for determining net self

employment income
. Although Escobar testifie d th e Lukasiks’ income in 2013 was $217,9 3 5 .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 deduction s, 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 accou nts 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 wa s 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 ins ufficient to support the jury’s finding that Lukasik unlawfully appropriated benefits from the Department. C ONCLUSION Because the evidence is legally insufficient to support Lukasik’s theft conviction, we reverse the trial court’s judgment and render a ju dgment of acquittal. Sandee Bryan Marion, Chief Justice DO NOT PUBLISH