Can a defendant waive a factual sufficiency argument when they are indicted for murder but found guilty of the lesser included offense of "manslaughter." Banks v. State, 124 SW3d 879, 883 fn1 seems to say that factual sufficiency can never be waived. I think there can be an argument made that if you request a lesser included you are admitting that there was at least some evidence presented that you are entitled to the lesser included; therefore, in some ways admitting that there was evidence to support the conviction. What does everyone else think about this?

I think this issue is currently pending before the cca. Bustillos v. State, 2003 WL 1386948 (Tex.App.-El Paso March 20, 2003, pet. granted)(not published).

There are numerous cases that have extended the long settled rule -- prohibiting legal sufficiency claims -- to factual sufficiency claims. Bisco v. State, 964 S.W.2d 29, 30
Tex.App.-Tyler 1997, pet. ref'd); contra

I have had it affirmed on that same issue in an unpublished opinion out of Corpus. Bean v. State 2001 WL 34394342 (Tex. App.--Corpus Christi, 2001). Former CCA judge Baird wrote the opinion. He cited Otting v. State, 8 S.W.3d 681, (Tex.App.-Austin,1999), which held the same way.

Judge Baird actually affirmed a conviction?

That guy must have been REALLY, REALLY guilty!!!