dissenting.
Because I believe that Appellant suffered some harm from the erroneous jury instruction, I dissent.
The majority accurately sets out the underlying facts of the case and conscientiously analyzes the applicable law as applied to those facts. I must disagree, however, with the majority’s interpretation of those facts.
Under the Almanza analysis, “[i]f the error in the charge was the subject of a timely objection in the trial court, then reversal is required if the error is ‘calculated to injure the rights of defendant,’ which means no more than that there must be some harm to the accused from the er*785ror.” 1 Because Appellant timely objected to the charge error, in determining whether some harm exists, this court must review the entire jury charge, the evidence, the jury argument, and “any other relevant information revealed by the record of the trial as a whole.”2
Although it is true that Officer Espinoza said that Appellant made an unlawful turn, he also testified that when Appellant turned left, the other truck was a little “less than a block” away. If the approaching truck had to skid and cause its brakes to screech, it could only be because it was approaching at an excessive speed. Under ordinary circumstances, there is ample time to turn in front of a vehicle that is a little “less than a block” away.
Additionally, Officer Espinoza did not decide to pull Appellant over until he saw Appellant pull into the parking lot of a strip club. Even then, Officer Espinoza did not turn on his overhead lights, and, in fact, he did not do the things an officer normally does when giving a ticket, nor did he give Appellant a ticket. The officer instead placed Appellant in the cage in the back of his police unit. Although Officer Espinoza claimed that he saw Appellant sway as he walked, there was no sway evident in the video taken at the police station roughly an hour after the arrest. Although the officer said that he smelled alcohol about Appellant’s person, it was not until he had placed Appellant in the unit that he was able to determine that the odor of alcohol was “a lot stronger.”
Without advising Appellant of any of the required warnings, the officer began to question him. Leaving Appellant in the back seat of the unit, from which Appellant could not exit, the officer searched Appellant’s truck, which was lawfully parked in the parking lot. It was only then that the officer decided that Appellant’s speech was “a little bit slurred.”
There was no indication that the officer was concerned for his safety. Rather, he was searching for evidence. As the Gant court pointed out, a person secured in the back seat of a police unit cannot reach any weapon in his own vehicle. An officer, therefore, is not justified in searching an empty vehicle on the basis of the officer’s safety.3 At no time was Appellant allowed to return to his truck.
Appellant was seized and put into the cage of the police unit, with doors that would not open from the inside, before the officer detected a strong odor of alcohol, before he learned that Appellant had had two drinks, and before he unlawfully searched Appellant’s truck and found alcohol. There was no field sobriety test. Neither officer had a functioning video camera in his unit. The only evidence of Appellant’s conduct at the scene of the arrest was the testimony of the police officers. Other than Officer Espinoza’s testimony that Appellant turned improperly, there was no evidence of impaired driving.
After Officer Norman arrived, he performed an HGN test that showed some nystagmus, which Norman characterized as “clues of intoxication.” Appellant’s eyes were also “a little bloodshot.” Appellant did not perform any other field sobriety tests.
Although there is no visual record of Appellant’s demeanor at the scene of the arrest, there is a DVD of his demeanor in *786the police station. The DVD reveals that Appellant’s speech was not slurred, he did not sway when he walked, he was steady on his feet, he was able to follow the written and oral warnings, and he repeatedly and clearly stated that he would not submit to any testing until his attorney arrived. He repeatedly requested that his attorney be present. Once a suspect has invoked his Fifth Amendment right to counsel, police interrogation must cease until counsel has been provided or the suspect himself reinitiates a dialogue.4 Yet the officers did not stop their attempts to question Appellant and continued to ask him to perform field sobriety tests and to submit a breath sample. I know of no rule of law that excepts DWI offenses from the mandate of the Fifth Amendment to the Constitution of the United States and Edwards v. Arizona,5
The jury, then, was presented with the fruit of an unlawful search, the fruit of unlawful questioning, no objective evidence in the form of on-scene videos, an HGN test, a video taken at the police station that indicated that Appellant had the normal use of his mental and physical faculties, and a jury instruction that singled out the breath-test refusal as evidence that the jury could consider.
In final argument, the prosecutors emphasized Appellant’s refusal of the tests at the time of arrest. At one point, the prosecutor said,
And he, again, refuses everything. And if you also notice on the tape, in the middle of nowhere, he says, “Okay, I’m good.” And then he’s offered a breath test, and he says No. He refuses everything.
And again,
He refused everything. Don’t you think if he wasn’t intoxicated, he would have done something? No, he did absolutely nothing and the defense counsel wants to fault us for that and tell us that we don’t have enough evidence because the defendant refused everything.
And yet again, “He refuses everything. And what does he say? My attorney told me not to do anything unless he was here.”
In determining that the charge error was harmless, the majority relies, in part, on improperly admitted evidence. Admittedly, defense counsel lodged not a single objection during trial, except for the objection to the jury instruction. While it is proper to rely on improperly admitted evidence in conducting a sufficiency review,6 it is not proper to rely on improperly admitted evidence in determining that the evidence of guilt was of such magnitude that the degree of harm caused by the improper jury instruction was outweighed by the quantum of the evidence of guilt. If that were the standard, cumulative error could outweigh the harm caused by charge error, rendering the charge error harmless in comparison to the other error in the case. Whether the charge error is harmless relative to the other error in the case is not the standard for reversal based on jury charge error.7
The trial court’s instruction singling out the evidence of Appellant’s refusal to submit to a breath test was an improper comment on the weight of that evidence. The prosecutor’s argument magnified the inju*787ry that Appellant suffered as a result of the trial court’s error. Additionally, both the jury instruction and the State’s argument implicate Appellant’s invocation of his right to counsel. Appellant’s refusal was conditioned on his attorney’s absence and his reliance on his attorney’s instructions. He voiced this explanation repeatedly on the video. The evidence was at best equivocal on the legality of the stop, the legality of the seizure, and Appellant’s guilt of the offense. Appellant therefore suffered some harm from the improper jury charge. This court should therefore sustain Appellant’s second issue, reverse the trial court’s judgment, and remand the case to the trial court. Because the majority does not, I must respectfully dissent.
. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984) (op. on reh’g).
. Id..; see also Ovalle v. State, 13 S.W.3d 774, 786 (Tex.Crim.App.2000).
. Arizona v. Gant, - U.S. -, 129 S.Ct. 1710, 1716, 173 L.Ed.2d 485 (2009).
. Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1884-85, 68 L.Ed.2d 378 (1981).
. See id.; see also U.S. Const, amend. V.
. Moff v. State, 131 S.W.3d 485, 489-90 (Tex.Crim.App.2004).
. See Almanza, 686 S.W.2d at 171; see also Ovalle, 13 S.W.3d at 786.