OPINION
ANNE GARDNER, Justice.
Rodney Dick Helm, Jr. appeals from his conviction for driving while intoxicated (“DWI”). In three points, he complains that the trial court erred by overruling his objection to a jury charge instruction, that the trial court abused its discretion by overruling his motion for new trial complaining of that jury instruction, and that the improper jury instruction harmed him. The State agrees that the trial court erred by giving the improper jury instruction but argues the error was harmless. We affirm.
Facts
While waiting at a stop sign, Officer Ismael Espinoza of the Fort Worth Police Department observed Appellant turn in front of another truck, which had to slam on its brakes to avoid a collision and skidded. Officer Espinoza considered the turn dangerous. Appellant drove past Officer Espinoza and into the parking lot of a striptease bar. Officer Espinoza then made a u-turn and followed Appellant into the lot. His overhead lights were not on. He parked behind Appellant and saw Appellant “moving something or placing something or possibly retrieving something” on his vehicle’s floorboard. Appellant exited his truck and walked toward the bar’s entrance, swaying and not acknowledging Officer Espinoza’s presence.
Officer Espinoza exited his car, approached Appellant, and detected an odor of alcohol about his person. He placed Appellant in the back of his squad car, in the confined space of which the smell of alcohol on Appellant’s breath was much stronger. Appellant admitted that he had been drinking; he said he had consumed “maybe two” drinks. Officer Espinoza found a 750-milliliter bottle of whiskey on the floor of Appellant’s truck, and the bottle was 80% empty. Appellant’s speech was “a little bit slurred.”
[782]*782Officer Espinoza was not trained to administer field sobriety tests, so he called for backup. Sergeant Weldon Norman responded to the call. Appellant told him “right off the bat that he wasn’t going to take any field sobriety tests” before Sergeant Norman had even spoken to him. Sergeant Norman then administered the HGN test, and Appellant exhibited four out of six clues of intoxication. Appellant’s eyes were “a little bloodshot.”
Officer Espinoza arrested Appellant for driving while intoxicated. He transported Appellant to the jail and gave him the DIC 24 warning. Appellant refused to provide a breath specimen.
Appellant points out that there were no police video cameras in either patrol vehicle; therefore, the only evidence of the events leading up to and including the arrest is the officers’ testimony. Also, a video recording of Appellant and his actions at the city jail was admitted and published to the jury.
The trial court instructed the jury, over Appellant’s objection, that “[y]ou are instructed that you may consider the defendant’s breath test refusal as evidence in this case.” The jury convicted Appellant, and the trial court sentenced him to ninety days’ confinement in the Tarrant County Jail and a fine of $550, with the confinement portion of the sentence probated for twenty-four months.
The trial court’s instruction was error
In Hess v. State, this court held that it was error for a trial court to give an instruction identical to the one in this case. 224 S.W.3d 511, 515 (Tex.App.-Fort Worth 2007, pet. ref'd). In Bartlett v. State, the Texas Court of Criminal Appeals, citing our Hess opinion, recently explained,
A judicial instruction that singles out a particular piece of evidence, but does not serve one of the legally authorized purposes set out above, risks impinging upon the “independence of the jury in its role as trier of the facts, a role long regarded by Texans as essential to the preservation of their liberties.” Even a seemingly neutral instruction may constitute an impermissible comment on the weight of the evidence because such an instruction singles out that particular piece of evidence for special attention. In the instant case, the question is whether the trial court’s seemingly neutral explanation of the law with respect to the admissibility of the refusal to take a breath test constituted such an impermissible comment.
270 S.W.3d 147, 151-52 (Tex.Crim.App.2008) (citations omitted).
The Bartlett court explained that there are three situations when a trial court may properly comment on a specific item of evidence:
First, the trial court may specifically instruct the jury when the law directs it to attach a certain degree of weight, or only a particular or limited significance, to a specific category or item of evidence, [such as accomplice testimony under article 38.14 of the code of criminal procedure or evidence admitted for a limited purpose under rule 105 of the Texas Rules of Evidence]. Second, the Legislature has expressly required the trial court to call particular attention to specific evidence in the jury charge when the law specifically identifies it as a predicate fact from which a jury may presume the existence of an ultimate or elemental fact.... Under section 22.05(c) [of the Penal Code, the deadly-conduct statute], recklessness and danger, two separate elements of the offense of deadly conduct, may each be presumed if a person knowingly points a firearm at or in the direction of another. Third, the trial court may instruct the [783]*783jury with respect to evidence that is admissible contingent upon certain predicate facts that it is up to the jury to decide. For example, when the law specifically assigns to jurors the task of deciding whether certain evidence may be considered, as it does under Article 38.23 of the Code of Criminal Procedure, it is essential that jurors be told exactly what evidence is in question [before] they can[] pass upon its admissibility.
Id. at 151 (citations and quotation marks omitted).
These are the only three circumstances under which the law authorizes singling out particular evidence in the jury instruction. Instructing the jury about the refusal to take a breath test does not fall within any of these three exceptions. As the State candidly concedes, the trial court clearly erred in instructing the jury that it could consider Appellant’s refusal to take a breath test. We sustain Appellant’s first issue.
The error was harmless
Having determined that there was error in the charge, we now must decide if sufficient harm was caused by the error to require a reversal. See Hutch v. State, 922 S.W.2d 166, 170-71 (Tex.Crim.App. 1996). The standard to determine whether sufficient harm resulted from the charging error to require reversal depends upon whether the Appellant objected. See Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim.App.2006) (interpreting Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1985) (op. on reh’g)). When the Appellant has made a timely objection at trial, as Appellant has in this case, an appellate court will search only for “some harm.” Abdnor v. State, 871 S.W.2d 726, 732 (Tex.Crim.App.1994).
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OPINION
ANNE GARDNER, Justice.
Rodney Dick Helm, Jr. appeals from his conviction for driving while intoxicated (“DWI”). In three points, he complains that the trial court erred by overruling his objection to a jury charge instruction, that the trial court abused its discretion by overruling his motion for new trial complaining of that jury instruction, and that the improper jury instruction harmed him. The State agrees that the trial court erred by giving the improper jury instruction but argues the error was harmless. We affirm.
Facts
While waiting at a stop sign, Officer Ismael Espinoza of the Fort Worth Police Department observed Appellant turn in front of another truck, which had to slam on its brakes to avoid a collision and skidded. Officer Espinoza considered the turn dangerous. Appellant drove past Officer Espinoza and into the parking lot of a striptease bar. Officer Espinoza then made a u-turn and followed Appellant into the lot. His overhead lights were not on. He parked behind Appellant and saw Appellant “moving something or placing something or possibly retrieving something” on his vehicle’s floorboard. Appellant exited his truck and walked toward the bar’s entrance, swaying and not acknowledging Officer Espinoza’s presence.
Officer Espinoza exited his car, approached Appellant, and detected an odor of alcohol about his person. He placed Appellant in the back of his squad car, in the confined space of which the smell of alcohol on Appellant’s breath was much stronger. Appellant admitted that he had been drinking; he said he had consumed “maybe two” drinks. Officer Espinoza found a 750-milliliter bottle of whiskey on the floor of Appellant’s truck, and the bottle was 80% empty. Appellant’s speech was “a little bit slurred.”
[782]*782Officer Espinoza was not trained to administer field sobriety tests, so he called for backup. Sergeant Weldon Norman responded to the call. Appellant told him “right off the bat that he wasn’t going to take any field sobriety tests” before Sergeant Norman had even spoken to him. Sergeant Norman then administered the HGN test, and Appellant exhibited four out of six clues of intoxication. Appellant’s eyes were “a little bloodshot.”
Officer Espinoza arrested Appellant for driving while intoxicated. He transported Appellant to the jail and gave him the DIC 24 warning. Appellant refused to provide a breath specimen.
Appellant points out that there were no police video cameras in either patrol vehicle; therefore, the only evidence of the events leading up to and including the arrest is the officers’ testimony. Also, a video recording of Appellant and his actions at the city jail was admitted and published to the jury.
The trial court instructed the jury, over Appellant’s objection, that “[y]ou are instructed that you may consider the defendant’s breath test refusal as evidence in this case.” The jury convicted Appellant, and the trial court sentenced him to ninety days’ confinement in the Tarrant County Jail and a fine of $550, with the confinement portion of the sentence probated for twenty-four months.
The trial court’s instruction was error
In Hess v. State, this court held that it was error for a trial court to give an instruction identical to the one in this case. 224 S.W.3d 511, 515 (Tex.App.-Fort Worth 2007, pet. ref'd). In Bartlett v. State, the Texas Court of Criminal Appeals, citing our Hess opinion, recently explained,
A judicial instruction that singles out a particular piece of evidence, but does not serve one of the legally authorized purposes set out above, risks impinging upon the “independence of the jury in its role as trier of the facts, a role long regarded by Texans as essential to the preservation of their liberties.” Even a seemingly neutral instruction may constitute an impermissible comment on the weight of the evidence because such an instruction singles out that particular piece of evidence for special attention. In the instant case, the question is whether the trial court’s seemingly neutral explanation of the law with respect to the admissibility of the refusal to take a breath test constituted such an impermissible comment.
270 S.W.3d 147, 151-52 (Tex.Crim.App.2008) (citations omitted).
The Bartlett court explained that there are three situations when a trial court may properly comment on a specific item of evidence:
First, the trial court may specifically instruct the jury when the law directs it to attach a certain degree of weight, or only a particular or limited significance, to a specific category or item of evidence, [such as accomplice testimony under article 38.14 of the code of criminal procedure or evidence admitted for a limited purpose under rule 105 of the Texas Rules of Evidence]. Second, the Legislature has expressly required the trial court to call particular attention to specific evidence in the jury charge when the law specifically identifies it as a predicate fact from which a jury may presume the existence of an ultimate or elemental fact.... Under section 22.05(c) [of the Penal Code, the deadly-conduct statute], recklessness and danger, two separate elements of the offense of deadly conduct, may each be presumed if a person knowingly points a firearm at or in the direction of another. Third, the trial court may instruct the [783]*783jury with respect to evidence that is admissible contingent upon certain predicate facts that it is up to the jury to decide. For example, when the law specifically assigns to jurors the task of deciding whether certain evidence may be considered, as it does under Article 38.23 of the Code of Criminal Procedure, it is essential that jurors be told exactly what evidence is in question [before] they can[] pass upon its admissibility.
Id. at 151 (citations and quotation marks omitted).
These are the only three circumstances under which the law authorizes singling out particular evidence in the jury instruction. Instructing the jury about the refusal to take a breath test does not fall within any of these three exceptions. As the State candidly concedes, the trial court clearly erred in instructing the jury that it could consider Appellant’s refusal to take a breath test. We sustain Appellant’s first issue.
The error was harmless
Having determined that there was error in the charge, we now must decide if sufficient harm was caused by the error to require a reversal. See Hutch v. State, 922 S.W.2d 166, 170-71 (Tex.Crim.App. 1996). The standard to determine whether sufficient harm resulted from the charging error to require reversal depends upon whether the Appellant objected. See Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim.App.2006) (interpreting Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1985) (op. on reh’g)). When the Appellant has made a timely objection at trial, as Appellant has in this case, an appellate court will search only for “some harm.” Abdnor v. State, 871 S.W.2d 726, 732 (Tex.Crim.App.1994). In other words, a properly preserved error will require reversal as long as the error is not harmless. Almanza, 686 S.W.2d at 171. In making this determination, “the actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.” Id.; see also Hutch, 922 S.W.2d at 171; Hess, 224 S.W.3d at 516-17.
After reviewing the entire jury charge, the state of the evidence, and the arguments of counsel, we hold that the instruction in this case, albeit improper, was not harmful to Appellant. Absent the instruction in question, the charge is wholly unexceptional. It contains no other erroneous or questionable sections, and the application paragraph properly instructs the jury to find Appellant guilty if “you find from the evidence beyond a reasonable doubt that in Tarrant County, Texas, on or about the 18th day of September, 2006, the defendant, Rodney Dick Helm, Jr., did then and there operate a motor vehicle in a public place while ... intoxicated.” See Tex. Penal Code Ann. § 49.04 (Vernon 2003). The charge then states “[u]nless you do so find beyond a reasonable doubt or if you have a reasonable doubt thereof, you will acquit the defendant and say by your verdict, not guilty.” The charge also properly defined intoxication to mean “not having the normal use of one’s mental or physical faculties by reason of the introduction of alcohol into the body.” See Tex. Penal Code Ann. § 49.01(2)(A). Assuming, as we must, that the jury followed the instructions of the trial court, Colburn v. State, 966 S.W.2d 511, 520 (Tex.Crim.App.1998), we cannot say that the erroneous instruction reduced the State’s burden of proof in any way.
The weight of the probative evidence militates against harm, too. See Almanza, 686 S.W.2d at 171. Appellant turned in [784]*784front of an oncoming vehicle, almost causing a wreck that was averted only because the other vehicle slammed on its brakes. His breath smelled of alcohol, his eyes were bloodshot, his speech was slurred, and he swayed when he walked. Officer Espinoza saw him place something on the floor of his vehicle, which the jury could have reasonably concluded was the mostly-empty whiskey bottle. Appellant exhibited four clues of intoxication on the HGN test, and he refused to take other field sobriety tests or submit a breath sample. Evidence favorable to Appellant’s defense is the video made at the jail, in which he does not exhibit obvious signs of intoxication, though he does sway back and forth. While this is not a “slam-dunk, falling-down drunk” type of case, we cannot say, given the weight of the evidence as a whole, that the court’s instruction harmed Appellant. See Hess, 224 S.W.3d at 516.
Additionally, once the trial court admitted testimony regarding Appellant’s refusal to take the breath test, both parties were free to argue that fact to the jury. See Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Crim.App.2000), cert. denied, 532 U.S. 944, 121 S.Ct. 1407, 149 L.Ed.2d 349 (2001); Hess, 224 S.W.3d at 516. Accordingly, the State argued, “Don’t you think if he wasn’t intoxicated, he would have [submitted to additional testing]?” Appellant’s counsel pointed out that a suspect does not have to submit to a breath test, but conceded that the jury could consider the fact that he refused to submit. Therefore, the jury did not need any judicial instruction to focus its attention on the refused test. See Brown v. State, 122 S.W.3d 794, 803 (Tex.Crim.App.2003); Hess, 224 S.W.3d at 517. Although the State referred to Appellant’s refusal three times during its closing, the record demonstrates that the prosecution did not emphasize the court’s instruction, focus the jury’s attention on that instruction, or exploit the instruction by placing the weight of the trial court behind it. See Hess, 224 S.W.3d at 511. Accordingly, we hold that the instruction was harmless under the facts of this case, and we overrule Appellant’s third issue. We also overrule his second issue, in which he argues that the trial court erred by failing to grant him a new trial based on the trial court’s erroneous charge instruction.
Conclusion
Having concluded that the trial court erred by specifically instructing the jury that it could consider Appellant’s refusal to a breath test but further concluding that the error was harmless under the evidence and circumstances of this case, we affirm the trial court’s judgment.
DAUPHINOT, J., filed a dissenting opinion.