Isreal Ambrosia v. State ( 2014 )

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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