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.
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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)
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“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.
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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 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 selfemployment 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 
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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 
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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 computing selfemployment income for eligibility purposes and provided a method for determining net selfemployment 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