A man accused of raping a 4-year-old walked free from a McLennan County courtroom Tuesday after prosecutors failed to persuade a judge to postpone the trial.

Andrew Smith, 50, was set to stand trial Tuesday in Waco’s 19th State District Court on charges that have been pending four years: three counts of aggravated sexual assault of a child and one count of indecency with a child by contact. To prevent the trial from going forward, prosecutors dismissed the charges that he sexually abused a boy in July and August 2007. Prosecutors said they will seek to reindict Smith soon and take him to trial.

The case was being prosecuted by Assistant Attorney General Gabrielle Massey, a former McLennan County prosecutor who was appointed special prosecutor in the case by 19th State District Judge Ralph Strother. Massey was handling the case before she took the new job in Austin last month.

Massey asked Associate Judge David Hodges, who was sitting in for Strother on Tuesday, to postpone Smith’s trial, saying she had learned Monday night that a witness in the case is ill, and because Massey herself was bitten by a dog on Sunday and said the pain and swelling in her arm was “escalating” Monday.

With a panel of 62 prospective jurors waiting in the courthouse rotunda, Smith’s attorney, Stephen Reed, objected to the delay, and Hodges denied Massey’s request.

Massey then offered to reduce the charges to second-degree felony injury to a child, but Smith balked at the plea offer. Massey then dismissed the case, preventing the trial from proceeding. She said she would seek another indictment against Smith on identical charges next week.

Reed declined comment after the dismissal. However, he told the court that he was willing to stipulate for the court record what the absent witness was going to say.

Massey also declined comment on the dismissal.

No cases to try

The dismissal in the Smith case left the court with no case ready to try Tuesday. The developments had a ripple effect on other pending cases, including a well-publicized theft case that was originally set for Tuesday involving an immigrant Waco businesswoman, Estela Fajardo.

Strother initially was set to try Smith’s case, but with an out-of-town appointment Tuesday, he handed it to Hodges, who had been set to hear Fajardo’s state-jail felony theft case.

Fajardo’s case was then postponed until March, and a prosecutor secured a personal recognizance bond to free her from jail, landing her in the custody of federal immigration agents, who nearly deported her to Mexico.

If Hodges had been free to hear Fajardo’s case Tuesday, she would have remained until then in the McLennan County Jail, where she has been for three years. Instead she was transferred to an immigration detention center south of San Antonio, leaving her lawyers scrambling to keep her from being deported.

After Massey dismissed Smith’s case, Hodges released the jury panel, which had been waiting in the hallway about 15 minutes. Those 62 jurors will be paid $40 each for their short courthouse appearance Tuesday morning, costing the county $2,480.

Court records show Smith’s case has had at least six priority trial settings since 2014 and each date was postponed for a variety of reasons.

Staff writer at the Waco Tribune-Herald covering courts and criminal justice. Follow me on Twitter @TSpoonFeed.

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