A homicide has been recently uncovered with facts that support manslaughter at most but may be criminally negligent homicide. The problem is that the act occurred outside of the limitations period for criminally negligent homicide. If this case goes to trial on a manslaughter indictment and the defendant requests submission of the lesser included of criminally negligent homicide, would that request be considered a waiver of Art. 12.01 CCP as discussed in Proctor v. State, 976 SW2d 840?