                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-13-00365-CR


ISREAL AMBROSIA                                                     APPELLANT

                                       V.

THE STATE OF TEXAS                                                       STATE


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          FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 1265361D

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                        MEMORANDUM OPINION1

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                                I. INTRODUCTION

      Appellant Isreal Ambrosia appeals his conviction for aggravated robbery

while using a deadly weapon. In one point, Ambrosia argues that the trial court

erred by overruling his motion to suppress evidence that he was identified in a

police-created photographic lineup shortly after the incident giving rise to this

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       See Tex. R. App. P. 47.4.
charge occurred and that his due process rights were violated when the

complainant in this case identified him in court. We will affirm.

                                 II. BACKGROUND

      Tomas Esparza was working on May 23, 2011, for Canteen Vending as a

delivery truck driver.     As part of his delivery duties, Esparza drove a

predetermined route, filling vending machines and collecting money.            After

refilling his truck around midday, Esparza stopped by a parking lot to eat his

lunch and make a phone call. He was interrupted when Ambrosia opened the

door of Esparza’s truck and ordered him to go to the back. Esparza initially

thought that Ambrosia was kidding because he recognized Ambrosia as a former

coworker. Ambrosia opened up his jacket and brandished a handgun that was

tucked inside his pants. Esparza asked Ambrosia, “Are you joking?,” to which

Ambrosia repeated, “Go to the back.”

      Esparza got out of the truck, walked back to the cargo compartment, and

gave Ambrosia the keys to his truck. In the meantime, another man exited a

small car parked nearby and approached to assist Ambrosia. Once inside the

cargo compartment, Ambrosia took out bags of money which Esparza had

collected from the vending machines earlier. Ambrosia and his accomplice also

took Esparza’s wallet and tied his hands to a pole in the back of the truck.

      Ambrosia then removed a photograph of Esparza’s children from

Esparza’s wallet and told him, “You have not seen anything. We know who your

children are.   You have not seen anything.”        Thereafter, Ambrosia and his


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accomplice closed Esparza inside the cargo compartment and left.             After

Esparza eventually managed to escape his restraints using a box cutter, he got

out of the back of the truck and drove to a nearby vendor, where he had people

there call the police.   Esparza eventually identified Ambrosia from a police-

created photographic lineup.

      Prior to trial, Ambrosia filed a motion to suppress, asserting that the

procedure used to identify him in the photographic lineup was impermissibly

suggestive. At the suppression hearing, Ada Aguilar testified that on the same

day the offense occurred, she assembled a photographic lineup of six individuals,

including a picture of Ambrosia, and showed it to Esparza. Esparza identified

Ambrosia as the assailant and told Aguilar that he knew Ambrosia because they

had previously worked together.

      During closing arguments at the suppression hearing, the following

colloquy took place:

            [Defense Counsel]: Judge, our argument is that since he’s
      wearing -- wearing the uniform, he’s -- we’ve heard testimony on the
      stand that [] Esparza stated that this person worked with him. He’s
      going and looking at a lineup and able to see someone who’s
      wearing the same uniform he wears every day.

            THE COURT: Let me ask you something. I -- I didn't hear
      any testimony about this was the same uniform they wear every day.
      Am I wrong?

            [Defense Counsel]: Well, the testimony was that [] Esparza
      works with the person.




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             THE COURT: Yeah, I heard that. But I didn’t hear the
      testimony about the partic -- particular uniform, if they do wear one
      at – at the job every day. Am -- am I wrong about that?

            [Prosecutor]: No, that’s correct, Judge.         There was no
      testimony about that.

              THE COURT: Okay. All right.

            [Defense Counsel]: I understand, Judge. That’s our argument
      that he was just picked out based on the -- on the clothing rather
      than based on the face.

      At the conclusion of the hearing, the trial court found that the identification

procedure was not impermissibly suggestive and overruled Ambrosia’s motion to

suppress. Esparza later positively identified Ambrosia at trial without objection.

A jury found Ambrosia guilty of aggravated robbery while using a deadly weapon

and assessed punishment at eighteen years’ confinement.             The trial court

sentenced Ambrosia accordingly, and this appeal followed.

                                  III. DISCUSSION

      In part of his sole issue, Ambrosia argues that the trial court erred by

overruling his motion to suppress a pretrial photographic lineup identification.

We conclude that there are no facts in the record to support Ambrosia’s

contention.

      We review a trial court’s ruling on a motion to suppress evidence under a

bifurcated standard of review.    Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

We give almost total deference to a trial court’s rulings on questions of historical



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fact and application-of-law-to-fact questions that turn on an evaluation of

credibility and demeanor, but we review de novo application-of-law-to-fact

questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at

673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v.

State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).

      When faced with a challenge to an out-of-court identification, a trial court

must look to the totality of the circumstances surrounding the identification to

determine if a procedure was so unnecessarily suggestive and conducive to

irreparable mistaken identification that the defendant was denied due process of

law. Webb v. State, 760 S.W.2d 263, 272 (Tex. Crim. App. 1988), cert. denied,

491 U.S. 910 (1989). In the first step in this analysis, the trial court determines

whether the identification procedure was impermissibly suggestive.         Barley v.

State, 906 S.W.2d 27, 33 (Tex. Crim. App. 1995), cert. denied, 516 U.S. 1176

(1996). If the trial court determines the identification is impermissibly suggestive,

the court must then consider the factors enumerated in Neil v. Biggers to

determine whether the suggestive procedure gave rise to a substantial likelihood

of irreparable misidentification.   409 U.S. 188, 199–200, 93 S. Ct. 375, 382

(1972).

      Here, Ambrosia argues that his picture in the photo array was

impermissibly suggestive because it displayed him wearing a uniform with

identifiable characteristics. Ambrosia’s argument is that because Esparza stated

to police that he recognized Ambrosia during the robbery because he had


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worked with him and because the complainant worked for Canteen Vending, a

picture of Ambrosia wearing a Canteen Vending uniform with a “visible” logo was

impermissibly suggestive.       But the suppression-hearing record does not

demonstrate that Ambrosia’s photograph was one in which he wore a uniform

that Esparza recognized. See Gutierrez v. State, 221 S.W.3d 680, 687 (Tex.

Crim. App. 2007) (recognizing the general rule that a reviewing court considers

only evidence adduced at the suppression hearing because the ruling was based

on it rather than evidence introduced later). Indeed, the suppression-hearing

record does not demonstrate what company Esparza and Ambrosia worked for,

nor does it otherwise reveal that the alleged uniform Ambrosia claims he was

wearing in the photographic lineup was one that Esparza recognized. In fact, at

the suppression hearing, Ambrosia’s trial counsel stated that he understood that

such evidence had not been introduced at the suppression hearing. Thus, the

trial court did not abuse its discretion by determining that the photograph of

Ambrosia used in the photographic lineup was not impermissibly suggestive

because there was no evidence presented at the suppression hearing that would

have served as the basis for the trial court to conclude otherwise. See Johnson,

68 S.W.3d at 652–53. We overrule this portion of Ambrosia’s sole issue.

      In the remainder of his sole issue, Ambrosia argues that his due process

rights were violated when Esparza identified him in court during trial.     We

conclude that Ambrosia forfeited this potential error on appeal because he did

not object to Esparza’s in-court identification.


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      The failure to complain or object in the trial court to in-court identifications

forfeits any complaint regarding the in-court identifications on appeal. See Ballah

v. State, No. 14–10–00460–CR, 2012 WL 19653, at *2 (Tex. App.—Houston

[14th Dist.] Jan. 5, 2012, pet. ref’d) (mem. op., not designated for publication.)

(citing Perry v. State, 703 S.W.2d 668, 670, 673 (Tex. Crim. App. 1986)).

Because Ambrosia did not object to Esparza’s in-court identification, we overrule

the remainder of his sole issue.

                                   IV. CONCLUSION

      Having overruled Ambrosia’s sole issue on appeal, we affirm the trial

court’s judgment.

                                                    PER CURIAM

PANEL: MEIER, WALKER, and MCCOY, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: December 18, 2014




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