DAVID LYNN MCGARY, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion Filed November 15, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-88-01208-CR
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DAVID LYNN MCGARY, Appellant
V.
THE STATE OF TEXAS, Appellee
 
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On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause No. F88-95009-JI
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OPINION PER CURIAM
Before Justices Stewart, Thomas and Kinkeade
        David Lynn McGary appeals his conviction for possession of a controlled substance, to-wit: cocaine in an amount less than twenty-eight grams. Punishment, enhanced by two prior convictions, was assessed at thirty years' confinement.
        Appellant's attorney has filed a brief in which appellant's attorney has concluded that the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), by presenting a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced. See High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). A copy of counsel's brief has been delivered to appellant and appellant has been advised that he would be given the opportunity to examine the appellate record and that he had a right to file a pro se brief. Appellant has filed a pro se brief in which he claims that the evidence is insufficient to support his conviction. We overrule his point and affirm the judgment of the trial court.
        Ray Cunningham, a Dallas police officer, testified that on February 25, 1988, he and his partner responded to a call of a suspicious person on or near the premises of an apartment complex. When they arrived at the site, the manager of the apartment complex pointed them to an automobile where, he claimed, people were shooting drugs. Officer Cunningham went to the car and saw appellant sticking a needle in his hand. When Officer Cunningham saw appellant, he called out to his partner, "He's got a needle." Appellant threw a needle to the floor of the car when he heard the officer. The officer arrested appellant and confiscated two syringes and a spoon. The chemist, a State's witness, testified that one of the syringes was found to contain 17.5 milligrams of cocaine and that the spoon had 1.0 milligram of cocaine on it. Officer Cunningham identified the syringe containing the cocaine as the syringe he saw appellant shooting into his hand.
        Appellant testified on his own behalf. He denied that he was using drugs at the time police saw him. He claimed that on the night of his arrest, he had delivered a car to a lady, then got together with a friend, rode around, and had a couple of drinks. His friend left him in the car when they arrived at the apartment complex. While appellant waited for his friend, the police arrived. Appellant testified that he had found some syringes on the floor, and attempted to dispose of them. He testified that he atttempted to dispose of the syringes because he was on parole at the time, and was afraid that his parole would be revoked if he was found in a car with drug paraphernalia. When the police officer opened the car door, appellant threw the syringes on the ground. He testified that he did not see the syringe or the spoon that was on the front seat.
        In reviewing the sufficiency of the evidence, this Court's inquiry is limited to determining whether, evaluating the evidence in the light most favorable to the verdict, any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Human v. State, 749 S.W.2d 832, 834 (Tex. Crim. App. 1988). In a bench trial, the judge is the sole judge of the credibility of witnesses and the weight to be given their testimony. Limuel v. State, 568 S.W.2d 309, 311 (Tex. Crim. App. [Panel Op.] 1978).
        Appellant makes three arguments concerning why the evidence is insufficient to prove his guilt. First, he claims that the evidence showed only that he used a controlled substance, not that he possessed it. We disagree. The evidence reflects that appellant was using a syringe which, at the time it was tested, was found to contain 17.5 milligrams of cocaine. We recognize that the evidence must show that appellant knowingly possessed the controlled substance; that is, appellant must know he is in possession of the controlled substance, and must know that the substance is contraband. Oakes v. State, 642 S.W.2d 174, 176 (Tex. Crim. App. 1982). Evidence of use of the substance may be sufficient to show that possession of the substance was intentional. See, e.g., Orosco v. State, 164 Tex. Crim. 257, 298 S.W.2d 134, 136 (1957); Davila v. State, 749 S.W.2d 611, 613 (Tex. App.--Corpus Christi 1988, pet. ref'd). In the present cause, appellant's attempt to shoot cocaine into his hand sufficiently established his knowing possession of the substance.
        Next, appellant argues that the evidence is insufficient because the testimony of Officer Cunningham was not corroborated. It is not necessary for the testimony of non-accomplice witnesses to be corroborated. See Huerta v. State, 390 S.W.2d 770, 772 (Tex. Crim. App. 1965) (testimony of undercover police officer in drug case need not be corroborated).
        Finally, appellant argues that the evidence was insufficient because the State did not establish that the weight of the controlled substance was less than twenty-eight grams. Appellant's contention is not supported by the record. The chemist testified to the amounts of controlled substance contained in the syringe and in the spoon; these amounts totaled less than twenty-eight grams.
        We conclude that the evidence was sufficient to support appellant's conviction. Appellant's point of error is overruled.
        We have carefully reviewed the record and counsel's brief and agree that the appeal is wholly frivolous and without merit. Further, we find nothing in the record that might arguably support the appeal.
        The judgment is affirmed.
 
                                                          PER CURIAM
 
Do Not Publish
Tex. R. App. P. 90
 
 
File Date[11-15-89]
File Name[881208F]