## Facts

- Zwack was prosecuted in Harris County, Texas for attempted capital murder of a peace officer and pleaded not guilty, asserting an insanity defense.
- The defense presented psychiatric and psychological testimony diagnosing paranoia and borderline schizophrenia.
- The State presented its own experts, who found no major mental illness and opined Zwack was legally sane at the time of the offense.
- During expert examinations, counsel established that a psychiatric treatise (Kaplan & Sadock) was familiar to the experts and recognized as authoritative, but counsel did not question any expert about specific contents of the treatise.
- After all experts had finished testifying, defense counsel sought to read excerpts from the treatise directly to the jury as substantive evidence; the trial court refused.
- Zwack requested that the jury be told the consequences of a not-guilty-by-reason-of-insanity verdict; the trial court followed Texas law barring such information.
- Zwack requested a self-defense instruction based on his claimed delusional perception of events; the trial court denied the request.
- At punishment, the jury received a parole-law instruction; the jury assessed 45 years’ confinement.

## Issues

1. Whether Texas Rule of Evidence 803(18) permits counsel to read excerpts from a learned treatise to the jury as substantive evidence when no expert is testifying and the treatise is not being used with expert examination.
2. Whether Texas law prohibiting informing jurors of the consequences of a not-guilty-by-reason-of-insanity verdict is unconstitutional or otherwise erroneous.
3. Whether a defendant is entitled to a self-defense instruction when the request rests on the defendant’s delusional perception of circumstances rather than legally justifying circumstances.
4. Whether giving a parole-law instruction at punishment was error requiring reversal, or harmless on this record.

## Decision

- The court of appeals affirmed the conviction and 45-year sentence.
- The trial court properly excluded the proposed reading from the psychiatric treatise because Rule 803(18) allows treatise statements to be read only while used with expert testimony on direct or cross-examination.
- The trial court properly refused to inform the jury of the consequences of an insanity acquittal because Texas law assigns post-verdict disposition to the court and bars informing jurors of those consequences.
- The trial court properly denied a self-defense instruction because, even accepting Zwack’s claimed perceptions, the use of deadly force against a peace officer was not legally justified under the circumstances presented.
- Any error in the parole-law instruction was harmless because the record did not show the instruction affected the jury’s punishment decision.

## Legal Principles

- Under Texas Rule of Evidence 803(18), statements from a learned treatise may be read into evidence only in conjunction with expert testimony on direct or cross-examination; counsel may not introduce treatise excerpts as stand-alone substantive proof after experts have left the stand.
- Texas law may bar informing juries of the consequences of a verdict of not guilty by reason of insanity; those consequences are for judicial administration rather than the jury’s fact-finding role.
- A self-defense instruction requires an evidentiary basis for legally justified use of force; mental-illness-based delusions do not convert an otherwise unjustified use of deadly force into self-defense.
- A parole-law charge, even if later questioned in other cases, warrants reversal only upon a showing of harm on the record.

## Conclusion

The court upheld Zwack’s conviction and sentence, holding that learned treatise evidence must be presented through live expert testimony, jurors need not be told what happens after an insanity acquittal, delusional perceptions did not support a self-defense instruction, and any error in the parole instruction did not warrant reversal absent record harm.


Zwack v. State, 757 S.W.2d 66 (Tex. App.—Houston [14th Dist.] 1988)