Fourth Court of Appeals

San Antonio, Texas

DISSENTING OPINION

No. 04-22-00072-CV

JMI CONTRACTORS, LLC,

Appellant

v.

Jose Manuel MEDELLIN,

Appellee

From the 285th Judicial District Court, Bexar County, Texas

Trial Court No. 2018-CI-05983

Honorable Aaron Haas, Judge Presiding

Opinion by: Luz Elena D. Chapa, Justice

Dissenting Opinion by: Rebeca C. Martinez, Chief Justice

Sitting: Rebeca C. Martinez, Chief Justice

Luz Elena D. Chapa, Justice

Liza A. Rodriguez, Justice

Delivered and Filed: August 28, 2024

On original submission, we held that the trial court erred in sustaining Jose Manuel 

Medellin’s objection to JMI Contractors, LLC’s offer of evidence relating to Medellin’s

consumption of alcohol and marijuana before the incident. We also held that the trial court’s error 

was harmful, and therefore, we remanded for a new trial. On Medellin’s motion for rehearing, the 

majority assumes error, but it concludes that the error was harmless. Because the majority’s harm 

analysis is flawed, and because we need not reach JMI’s other issues, I respectfully dissent.
Dissenting Opinion 04-22-00072-CV

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I. EXCLUDED EVIDENCE

Before trial, the trial court granted Medellin’s motion in limine and prohibited, “[a]ny 

comment, question, statement or reference made directly about, or intended to elicit any testimony 

regarding the use of” either marijuana or alcohol by Medellin. At trial, JMI offered evidence of 

Medellin’s consumption of alcohol and marijuana on the morning of the accident. Medellin 

objected on the grounds that such evidence was irrelevant and unfairly prejudicial. The trial court 

sustained Medellin’s objections. Outside the jury’s presence and in an offer of proof, JMI offered 

the pretrial deposition testimony of Medellin, Luis Garcia, Aberlardo “Lalo” Hernandez, Raul 

Rodriguez, and Jerome E. Spear, Medellin’s expert on Occupational Safety and Health 

Administration (OSHA) safety regulations.

Medellin testified that, at 10:30 a.m. on the day of the incident, he had drunk one sixteenounce beer and smoked half a marijuana cigarette. Medellin stated that he drank and smoked 

because he believed that he was not going to be working that day. However, subsequently, 

Hernandez called Medellin and asked him to help at the Oaks Apartments. At the time, Medellin 

was at Sandoval Roofing waiting to receive his paycheck. Medellin agreed to assist Hernandez, 

but he did not inform Hernandez that he had consumed a beer and smoked marijuana. When asked 

“why did you go up onto the roof after drinking a beer,” Medellin answered, “[b]ecause it was just 

one.” The records from the hospital where Medellin received emergency medical treatment 

immediately following his accident indicated that he had a “baggy of some green leafy material” 

on his person. 

Garcia testified that he and his wife went to Sandoval Roofing before the incident to drop 

off paperwork. There, at sometime between 10:30 a.m. and noon, Garcia witnessed Medellin 

holding a beer. Garcia admitted that he drank a beer on the way to Sandoval Roofing, and, at some 

unspecified time, smoked a marijuana joint. Garcia, however, denied smoking marijuana with 
Dissenting Opinion 04-22-00072-CV

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Medellin. Thereafter, Garcia, his wife, and Medellin drove to the Oaks Apartments, arriving at 

approximately 1:30 p.m.

Raul Rodriguez testified that he saw Medellin arrive at the Oaks Apartments with Garcia 

and Garcia’s wife. Both Medellin and Garcia ascended to the roof and began working. However, 

when Raul Rodriguez approached Garcia, he noticed that Garcia had been drinking. Raul 

Rodriguez decided that it was not safe for Garcia to remain on the roof, and he “sent him down.” 

Before Medellin fell, Raul Rodriguez did not suspect that Medellin was intoxicated or impaired 

because he was not stumbling, staggering, or slurring his speech. Raul Rodriguez witnessed 

Medellin fall, recounting, “I turned around like this, and he was like this. When he pulls the roll, 

because he was dizzy; he was drunk; his body tips off, and he falls down.” Raul Rodriguez 

descended from the roof, approached Medellin, and told him, “you should have told me that you 

were — you had been drinking.” As Medellin was laying on the ground, Raul Rodriguez noticed 

that he smelled of alcohol and marijuana. 

Hernandez, on examination by JMI, testified:

Q. Well, I learned for the first time in talking to Mr. Medellin . . . that he had 

drank a Tallboy beer and smoked half a joint before going up on the roof at 

the Oaks on Bandera Apartments. Did you know that before he got up on 

the roof that morning?

A. I was up on the roof when they got up there and I could smell him, you 

know; but that’s regular. I mean, that smell, it’s already — it’s old. You 

know, it’s old.

Q. When you contacted Mr. Medellin that morning, you weren’t — you didn’t 

contact him about doing any work, did you?

A No. He called me and said that they didn’t work. [sic] I don’t know if it 

was Sandoval or what company he was working for that day, but that they 

didn’t work. [sic] If I wanted any help.

. . .
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Q. So when Mr. Medellin contacts you, did you ask him whether he had 

consumed any alcohol or smoked any marijuana?

A. I don’t need to. I don’t need to ask him, you know. I mean, because when 

you smoke, you smoke, you know.

Q. So when he showed up at the Oaks on Bandera job site, did you have an 

opportunity to assess him before he got up on the roof?

A. No, we were up there already. So they went up there. They got up there.

. . .

Q. Okay. Now, going back to the day of the incident, when you went and 

observed Mr. Medellin, did other individuals go down there to the ground 

as well such as Raul?

A. All of us. All of — everybody got down. 

Q. And at that point, did you realize that Mr. Medellin smelled of alcohol and 

of marijuana? 

A. (Nodding head.)

MEDELLIN’S COUNSEL: Object to form.

Q. Is that when you first [sic] he had been drinking and smoking marijuana?

A. No, no.

MEDELLIN’S COUNSEL: Object to form.

A. — since before. Since he got there.

Q. Oh, you knew when he got there?

A. Yeah. But if you’ve been drinking the night before, I mean, you’re still 

going to f------ stink like alcohol the whole following day, sometimes two 

days.

Q. And so did he smell of alcohol when —

A. No.
Dissenting Opinion 04-22-00072-CV

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On cross-examination by Medellin, and tendered by him as rebuttal evidence in the offer of proof, 

Hernandez denied seeing Medellin stumble or slur his speech. If Hernandez believed that Medellin 

was intoxicated, he would not have let him on the roof. 

Spear testified by deposition:

Q. Mr. Spear, if you’re being honest and truthful in your testimony in this case, 

what are some of your opinions with respect to Mr. Medellin’s

responsibility for his actions and conduct on the day of the accident? 

A. Well, if — I would say, I mean, anyone has — has authority to — to refuse 

work at a — at an — you know, if the work site is unsafe, you know. So if

— if he did understand — to the degree that he understood and appreciated 

the risks of the fall hazards from working without fall protection at an 

elevation above six feet then he should have refused the — to perform that 

work.

Q. Okay. Anything else if you’re being honest and truthful in your opinions 

with respect to Mr. Medellin’s responsibility and duties on the date of the 

accident?

A. Well, it’s my — my understanding that — that he had drank a — a beer that

— either that morning — I’m not exactly sure of the time frame or whatever

else — and I believe he had smoked [a] joint or shared partially, and to the 

degree that — that he — that he felt that he was under the influence then he

should have refused to perform that work.

II. HARM ANALYSIS

Medellin made no argument regarding harm in his brief on original submission. On 

rehearing, Medellin argues that the excluded evidence of his consumption of alcohol and marijuana 

was cumulative. Specifically, Medellin contends that “medical records taken after the incident 

were introduced into evidence and contained results for blood alcohol and drug abuse screens, 

including several references to a positive marijuana result.” As support, Medellin highlights four 

lines from approximately 635 pages of medical records from University Hospital that note: (1) “4.: 

+Urine tox: benzos, marijuana[;]” (2) “Pt w/ (+) marijuana UDS on arrival[;]”(3) “X ETOH 
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Alcohol (Ethanol only)[;]” and (4) “Consult (Inpatient) (Addiction Services-LCDC)[.]” This 

“cumulative evidence,” according to Medellin, renders any error harmless.

Generally, we do not consider arguments made for the first time in a motion for rehearing. 

See, e.g., Torres v. Haynes, 432 S.W.3d 370, 371 (Tex. App.—San Antonio 2014, no pet.) (“Points 

of error concerning the trial court’s jurisdiction to proceed to judgment present questions of 

fundamental error and are exempt from the general rule that points of error raised for the first time 

in a motion for rehearing are too late to be considered.”). We also are not required to search the 

record without direction from the parties. See TEX. R. APP. P. 38.1(i) (“The brief must contain a 

clear and concise argument for the contentions made, with appropriate citations to authorities and 

to the record.”); see, e.g., Lambert v. Sw. Tex. Junior Coll., No. 04-20-00493-CV, 2021 WL 

1553973, at *2 (Tex. App.—San Antonio Apr. 21, 2021, no pet.) (per curiam) (mem. op.). Here, 

Medellin not only failed to direct us to the evidence, but he assured us in his opening brief that no 

such evidence existed.1

Putting aside Medellin’s about-face, Medellin’s cumulative-evidence argument on 

rehearing is unavailing because the test results that he now showcases are not cumulative. Only 

the excluded testimony would have established consumption on the morning — and perhaps until 

noon, according to Garcia — of the accident. The trial court effectively excluded any mention of 

Medellin’s consumption of alcohol and marijuana on the day of the incident by sustaining 

Medellin’s objections. Therefore, the excluded evidence was not cumulative. The rest of the 

1 The majority accepts Medellin’s newfound cumulative-evidence argument by contending that “an appellee ‘d[oes] 

not need to raise every argument supporting the trial court’s judgment in its appellee’s brief in the court of appeals.’” 

See JMI Contractors, LLC v. Medellin, No. 04-22-00072-CV, Slip Op., p.17 (Tex. App.—San Antonio Aug. 28, 2024, 

no pet. h.) (op. on reh’g) (quoting In re G.X.H., 627 S.W.3d 288, 295 (Tex. 2021)). However, Medellin’s brief on 

original submission did more than simply omit a responsive harm analysis; it asserted the opposite of what Medellin

now contends, stating: “There was no evidence of Medellin’s blood alcohol content (BAC) or toxicology levels.” This

inconsistency alone distinguishes this case from In re G.X.H. Cf. In re G.X.H., 627 S.W.3d at 301 (noting that “[t]he 

Department’s position in this Court is consistent with the position it had taken all along” and concluding that “both 

estoppel and the invited-error doctrine are inapplicable.”).
Dissenting Opinion 04-22-00072-CV

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evidence strongly favored Medellin in that there was relatively little evidence supporting JMI’s 

proportionate-liability defense. Therefore, the “first consideration — whether the evidence was 

cumulative or strongly one-sided — does not support a conclusion that the exclusion was 

harmless.” JBS Carriers, Inc. v. Washington, 564 S.W.3d 830, 840 (Tex. 2018).

The second consideration — whether the excluded evidence was crucial to a key issue —

also does not support a conclusion that the exclusion was harmless. In JBS Carriers, the Texas 

Supreme Court wrote that “it is unquestionable that [the decedent’s] state of mind and mental 

decision-making processes were crucial to the key issue of whether her decision to walk into the 

street met the standard of reasonable care.” Id. In this case, Medellin’s ability to maintain his 

orientation while completing the project he and Reybel Rodriguez undertook was a key issue in 

assessing whether Medellin was negligent. Raul Rodriguez’s testimony that Medellin appeared 

dizzy and his and Hernandez’s recollection that Medellin smelled of alcohol and marijuana speak 

to whether Medellin acted as a person of ordinary prudence under the same or similar 

circumstances. Even Spear acknowledged that if Medellin “felt that he was under the influence 

then he should have refused to perform that work.”

When asked by JMI to describe how he fell off the roof, Medellin testified by deposition, 

“[b]ecause the man told me to pull the whole roll. And because everybody was going so fast, he 

said go, go, go, go. I continued walking and for — and because I was observing the man that told 

me, I forgot about the edge and I fell.” Medellin’s consumption of alcohol, marijuana, and 

“benzos” may have played no, some, or a significant role in Medellin accepting roofing work on 

the day in question and then “forg[e]t[ting] about the edge.” These two acts or omissions by 

Medellin were key issues in JMI’s proportionate-liability defense. Whatever role such 

consumption may have played, it was for the jury — not the trial court — to reconcile through the 

excluded testimony of Medellin, the test results that Medellin belatedly acknowledges, and the 
Dissenting Opinion 04-22-00072-CV

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testimony of Garcia, Raul Rodriguez, Hernandez, and Spear. Accordingly, the excluded evidence 

meets the second harmful error consideration articulated in JBS Carriers. Id.

III. CONCLUSION

As on original submission, I would sustain JMI’s sub-issue challenging the exclusion of 

evidence, and remand for further proceedings consistent with this opinion.2 I would not address 

JMI’s remaining issues because they would not afford greater relief than already provided. See 

TEX. R. APP. P. 47.1.3 Because the majority does otherwise, I respectfully dissent.

Rebeca C. Martinez, Chief Justice

2 I also would overrule JMI’s legal-sufficiency sub-issues for the reasons previously stated. See JMI Contractors, 

LLC v. Medellin, No. 04-22-00072-CV, 2023 WL 4217036, at *2–6 (Tex. App.—San Antonio Jun. 28, 2023, no pet.)

(mem. op.) (Martinez, C.J.).

3 As to the remaining issues, I note only that the majority does not look to Alonzo v. John, 689 S.W.3d 911 (Tex. 2024) 

(per curiam), the Texas Supreme Court’s most recently issued opinion on incurable argument.