Any help is appreciated. Basically, we had a jury trial in municipal court on a class c failure to appear. The complaint and information included the language more or less, "unless the defendant had a reasonable excuse". The issue of whether this was an affirmative defense was brought up at trial and the court determined that it was and I (the state) had to prove the element. The jury convicts. Now on appeal, Defendant is arguing the complaint and information were defective. Basically, it added an element to the detriment of the State. So the issue is what do we do when an additional element is contained in the complaint and information. Does this make the complaint/information defective? I don't think so because it added an additional element that I had to prove, but Judge wants caselaw on this issue and I can't find any. Thanks in advance.

If you have a trial de novo on the appeal, just move to amend and delete the unnecessary language.

Take a look at Nam Hoai Le v. State. 963 S.W.2d 838. It deals with a very similar issue where an additional "element" is alleged that isn't necessary to prove the offense and then the complaint is later challeneged on appeal. It doesn't render the complaint defective.

Bottom line is that on a de novo appeal the best practice is to always file a new information even if no formal complaint/information was ever filed in the muni or JP court. On your new information you can plead it any way you want and what was contained on the original complaint makes no difference so long as it was sufficient to confer jurisdiction in the original court.