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 

 

1See Tex. R. App. P. 47.4.
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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 policecreated 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